BVA9501441 DOCKET NO. 93-07 756 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to secondary service connection for a back disorder. 2. Entitlement to an increased evaluation for a service- connected bilateral knee disorder, currently rated as 10 percent disabling. ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from January 1958 to January 1962 and from August 1965 to August 1981. This appeal is before the Board of Veterans' Appeals (the Board) from January 1991 and June 1991 rating decisions of the Regional Office (RO) which denied service connection for a back disorder and granted service connection for a right knee disorder secondary to the service connected left knee disorder. The veteran was granted a 10 percent rating for his bilateral knee disorder. The case is now ready for appellate review. The Board notes that the issue of exposure to Agent Orange has not been fully developed by the RO and was not certified for appellate review. Thus, the Board lacks jurisdiction over this issue and will not consider it at this time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the severity of his bilateral knee disorder warrants a disability evaluation in excess of the 10 percent rating currently assigned. In addition, the veteran is contending that he is entitled to secondary service connection because his current back disorder was caused by his service- connected left knee disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not presented a well-grounded claim for service connection for a back disorder and that the evidence does warrant an increased evaluation, not in excess of 20 percent, for a bilateral knee disorder. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The claim for secondary service connection for a back disorder is not plausible. 3. The veteran's right knee disability is manifested principally by subjective complaints of pain and crepitation. 4. The veteran's left knee disability is manifested principally by subjective complaints of pain, crepitation and some point tenderness to palpation. 5. The veteran's bilateral knee disability does not produce an exceptional or unusual disability picture with related factors such as need for frequent hospitalization or marked interference with employment. CONCLUSIONS OF LAW 1. A well-grounded claim for a back disorder as proximately due to or the result of service-connected disability has not been presented. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310 (1993); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993); Layno v. Brown, No. 92-353 (U.S. Vet.App. May 27, 1994). 2. The criteria for an evaluation of 20 percent for a bilateral knee disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.26, 4.40, 4.71a, Codes 5003, 5257, 5260 and 5261 (1993). 2. The criteria for an evaluation in excess of 20 percent for a bilateral knee disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.26, 4.40, 4.71a, Codes 5003, 5257, 5260 and 5261 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that, except for the claim for service connection for a back disorder, the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). A review of the veteran's service medical records reveals that the veteran injured his left knee several times during active service. He underwent corrective surgery and ligament repair in 1978; early degenerative changes in the left knee were noted at that time. The veteran continued to complain of and be treated for left knee pain until his separation from service in 1981. There is no evidence of any continuing back disorder or disability in the veteran's service medical records. The veteran was afforded a VA medical examination in March 1982. The examination report noted current complaints of left knee and joint pain as well as indigestion. The veteran was noted to walk with a normal gait. Also, there was no muscular atrophy or weakness in the legs. The examination report contained no evidence of any complaint or finding of any back disorder or disability. The final diagnosis was: Left Knee - residuals postoperative repair of the medial collateral ligament, internal derangement manifested by laxity of the medial collateral ligament, chondromalacia of the patella, post-traumatic arthritis, and retained metallic staple, symptomatic, chronic, moderate. In an April 1982 rating decision, the veteran was granted service connection for postoperative repair of medial collateral ligament with post-traumatic arthritis of the left knee, and assigned a 10 percent disability evaluation. The veteran was afforded a second VA examination of his left knee in February 1984 at which time his gait was normal. The examination report contained no evidence of any complaint or finding of any back disorder or disability and the veteran's left knee disorder was found to have improved. Following this examination, the RO reduced the disability evaluation for the veteran's left knee disorder to a noncompensable rating in a March 1984 rating decision. The veteran submitted a written statement in July 1990. He indicated that his service-connected left knee disorder had increased in severity. In addition, his right knee had begun to give him trouble. He was currently employed as a security guard but found it more difficult to do his job due to his knees. The veteran was afforded a VA orthopaedic examination in August 1990. The examination report noted the veteran complained of pain in both knees and inability to do any prolonged walking or standing. The examination report contained no evidence of any complaint or findings of any back disorder. In addition, the examiner only commented on the status of the left knee; the final impression was: Status post repair of left medial collateral ligament with minimal post traumatic arthritis, mildly symptomatic. The veteran submitted a written statement in April 1991. He stated that he was unable to stand or walk even a short distance without pain in both his knees and lower back. The veteran was afforded a VA orthopedic examination in May 1991. The examination report noted a history of several injuries to the left knee during service. The veteran stated that he continued to have problems with the left knee after discharge from service; the right knee had begun to worsen approximately one year earlier. The veteran believed that his right knee pain had been caused by compensating for his service-connected left knee disorder. The veteran also reported he had developed some pain in the right lower back region. The veteran was currently working part-time as a security guard but he indicated he was having some difficulty because he could only walk a short distance without resting. X-rays of the back showed osteophyte formation in the lumbar spine and possible mild narrowing at the L5-S1 intervertebral disc space. X-rays of both knees showed arthritic changes at the knees bilaterally and postoperative changes of the left knee. Physical examination revealed crepitus in both knees with negative anterior and posterior drawer signs bilaterally. There was a 15 cm elliptical scar over the medial aspect of the left knee. No effusion or erythema was noted. Extension and range of motion about the knees was normal. There was some minimal tenderness over the medial aspect of the left knee; no identifiable area of tenderness was noted on the right knee. Knee extension and flexion was 0 to 140 degrees. Physical examination of the back revealed an area of point tenderness in the right lower back with some pain on hip motion. The final diagnoses were: 1. Status post repair of the medial collateral ligament, with probable osteoarthritis in the left and right knee by exam. 2. Paraspinal right low back pain of undetermined etiology. In a subsequent rating decision, dated in June 1991, the RO granted secondary service connection for a right knee disorder and assigned a noncompensable rating for the disability. The noncompensable rating for the left knee disorder was also continued. The two knee disorders were then combined for a 10 percent disability rating. In a written statement received from the veteran in August 1991, he indicated that because of the condition of his knees he was unable to walk for any distance, stand for any long period of time, lift anything heavy, walk straight up stairs, or climb ladders. He further stated that since all his training and skills were in law enforcement he had obtained a job in security; however, his physical limitations prohibited him from doing that job well. Entitlement to service connection for a back disorder The threshold question to be answered is whether the veteran has presented a well-grounded claim for service connection for the disability at issue. If not, his claim must fail, and there is no further duty to assist him because additional development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). As will be explained below, the Board finds that the claim for service connection for service connection for a back disorder is not well grounded, and there is not further duty to assist the veteran in developing the claim. Service connection will be granted for disability resulting from personal injury suffered or disease contracted in line of duty during active service. 38 U.S.C.A. §§ 1110, 1131. In order to establish entitlement to secondary service connection, the evidence must show that a disability is secondary to a service- connected disability. In this case, the evidence must show that the veteran's back disorder is proximately due to or the result of the service-connected bilateral knee disorder. A claim is well grounded where it is plausible or capable of substantiation. Murphy, 1 Vet.App. at 81. The quality and quantity of evidence required to satisfy this statutory burden will depend upon the nature of the claim; however, lay assertion of medical causation or diagnosis is insufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 92-93. A review of the claims folder shows that the veteran had no chronic back disorder or disability during service. Indeed, the first medical evidence of a back disorder was in May 1991 when x- rays revealed osteophyte formation in the lumbar spine and possible mild narrowing at the L5-S1 intervertebral disc space. The veteran was diagnosed to have paraspinal right low back pain of undetermined etiology. The veteran is alleging secondary service connection for his current back disorder on the basis that it was caused by the service-connected residuals from the repair of the medial collateral ligament of his left knee. The Board finds that the veteran has failed to present competent evidence of any causal relationship between his current back disorder and his service- connected bilateral knee disorder. The statements of the veteran that his current back disability was caused by or the result of his knee disorder is not competent evidence with regard to this issue. Layno v. Brown, No. 92-353 (U.S. Vet.App. May 27, 1994); Grottveit, 5 Vet.App. at 93. Thus, the only evidence the veteran has presented in support of his claim is that he has had pain in his back for the last several years. Simply, the veteran has presented no evidence relating his current disability to his service-connected disability. He lacks the medical expertise to enter a medical judgment as to any relationship between the onset of the claimed disorder and his service-connected bilateral knee disorder. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, even to the extent that the back disorder is now present, there is no evidence of medical causality, and as such, the veteran's claim for secondary service connection for a back disorder is not well grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). Entitlement to an increased rating for bilateral knee disorder Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The entire history of the disability will be reviewed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Favorable ankylosis of either knee warrants a 30 percent evaluation. Ankylosis is considered to be favorable when the knee is fixed in full extension, or in slight flexion at an angle between 0 degrees and 10 degrees. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 degrees and 20 degrees. 38 C.F.R. § 4.71a, Code 5256. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. A 30 percent evaluation, the highest possible evaluation under this rating code, requires severe impairment. 38 C.F.R. § 4.71a, Code 5257. Limitation of flexion of either leg to 60 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that flexion be limited to 45 degrees. A 20 percent evaluation requires that flexion be limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension of either leg to 5 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that extension be limited to 10 degrees. A 20 percent evaluation requires that extension be limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5261. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. In evaluating the degree of disability, the Board must consider the clinical findings of functional loss, as well as functional loss due to pain. Functional loss due to pain may be found if supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The Board finds, based on the evidence of record, that the objective findings of the veteran's right knee disorder do not warrant a compensable evaluation under Code 5003, 5256, 5257, 5260 or 5261. As for the veteran's left knee disorder, the Board finds that no more than a 10 percent disability evaluation is warranted. The recent VA examination found no ankylosis, and no limitation of range of motion, although crepitation was noted in both knees and tenderness in the left knee. Furthermore, the examination noted no instability or laxity in either knee. However, the Board also considered the provisions of 38 C.F.R. § 4.40 and the veteran's limitation of movement due to pain. The veteran has submitted statements as to pain and limitation of movement. Taking into consideration the objective findings as well as the subjective statements of the veteran, the Board finds that the veteran's right knee disorder does warrant a compensable evaluation, not in excess of 10 percent. The resulting rating for the bilateral knee disorder is 20 percent. In reaching our decision consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We also do not find that the evidence presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). There is no evidence of frequent periods of hospitalization or marked interference with employment due to this disorder. ORDER Evidence of a well-grounded claim not having been submitted, the claim for secondary service connection for a back disorder is dismissed. A 20 percent disability evaluation for a bilateral knee disorder is granted. An evaluation in excess of 20 percent is denied. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.