Citation Nr: 0005758 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 94-34 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a right hip disorder as secondary to service-connected bilateral knee disability. 3. Entitlement to an increased rating (compensable) for bilateral knee disability. 4. Entitlement to an increased rating (compensable) for a scar of the right lower eyelid. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The veteran had active military service from September 1950 to November 1950, August 1951 to July 1955, and from October 1961 to December 1962. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The claims for service connection for bilateral hearing loss and a right hip disorder as secondary to service- connected bilateral knee disability are not plausible. 2. The medical evidence reveals that there is no myositis of the knees. 3. The service-connected scar over the right lower eyelid is asymptomatic. 4. No unusual or exceptional disability factors have been presented with respect to the veteran's service connected bilateral knee disability or scar of the right lower eyelid. CONCLUSIONS OF LAW 1. The claims for service connection for bilateral hearing loss and a right hip disorder as secondary to service- connected bilateral knee disability are not well grounded. 38 U.S.C.A § 5107(a) (West 1991). 2. The criteria for a compensable disability evaluation for bilateral knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Code 5021 (1999). 3. The criteria for a compensable disability evaluation for a scar over the right lower eyelid have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 7800, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board finds that the claims for service connection are not well grounded within the meaning of 38 U.S.C.A. § 5107(a). However, the increased rating claims are well grounded and thus plausible within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). Service Connection The threshold question to be answered with respect to this appeal is whether the appellant has presented evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is a claim that is plausible, that is, one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the appeal must fail with respect to it, and there is no duty to assist the appellant further in the development of facts pertinent to the claim. Id., 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The initial burden is on the claimant to produce evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a); see Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 610-11. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Grottveit at 92-93. Further, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or an injury in service (lay or medical evidence), and medical evidence of a nexus between the inservice injury or disease and a current disability. Epps. v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam), Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). To establish a well-grounded claim for entitlement to service connection on a secondary basis, the veteran must provide medical evidence that attributes a non service-connected disability to a service-connected disability. Jones v. Brown, 7 Vet. App. 134, 137 (1994). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1999). In Allen v. Brown, the Court of Appeals for Veterans Claims held that "when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to aggravation." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc), In this matter, the veteran asserts that he developed a right hip disorder as a result of his service-connected bilateral knee disability. The Board notes that service connection is in effect for myositis of both knees. The record reflects that the veteran has a right hip disability: degenerative joint disease of the right hip with residuals of decreased range of motion. However, there is no medical evidence establishing that the disorder was caused or chronically worsened by the service-connected bilateral knee disorder. Notably, a VA examiner in August 1998 opined that the right hip disability was not related to the bilateral knee condition. In addition, there is no medical evidence establishing that the right hip disability was worsened by the service-connected bilateral knee disability. Thus, the only evidence attributing the right hip disability to the knee disorder is the veteran through testimony and representations. Lay persons such as the veteran are not qualified to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In the absence of competent medical evidence establishing a link between the right hip disorder and the service-connected bilateral knee disability, the Board must find that the veteran's claim is not well grounded. With respect to the claim for service connection for bilateral hearing loss, certain diseases, including sensorineural hearing loss, may be presumed incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater ; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). The veteran contends, in essence, that he is entitled to service connection for bilateral hearing loss. In support thereof, the veteran maintains that he was exposed to acoustic trauma during service and that he developed a hearing impairment as a result. Specifically, the veteran testified at a personal hearing in September 1995 before a hearing officer that he was exposed to gunfire during his tour of duty in 1950. Service medical records including separation examinations are negative for complaints, findings, or diagnosis pertaining to a hearing impairment. VA medical records of record reflect that the veteran was first seen for a hearing impairment in October 1993. At that time, hearing in the right ear was recorded in pure tone thresholds (in decibels) as 5, 10, 30, 40, and 55 at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) and 10, 15, 40, 70, and 90 at 500, 1000, 2000, 3000, and 4000 Hz in the left ear. Speech recognition in the right ear was 96 percent and 92 percent in the left ear. In August 1998, hearing in the right ear in puretone thresholds were recorded as 10, 20, 35, 50, and 55 Hz at 500, 1000, 2000, 3000, and 4000 Hz and 15, 25, 40, 80, and 100 decibels at 500, 1000, 2000, 3000, and 4000 Hz in the left ear. Speech recognition was 84 percent in the right ear and 80 percent in the left. The summary was moderate to profound high frequency sensorineural hearing loss in both ears. The record also includes opinions provided by Bert M. Brown, M.D. dated in November and December 1994. In November, Dr. Brown opined that based on a history provided by the veteran's that the hearing loss was caused by noise exposure during service. However, in December the doctor attributed the hearing impairment to the veteran's 21-year post service employment with the U.S. Department of Justice whereby the veteran was exposed to firearms. Based on the foregoing, the Board finds that the veteran's claim is not well grounded. Notably, service medical records do not reflect complaints or a diagnosis with respect to a hearing impairment. The medical evidence establishes that the veteran has a bilateral hearing impairment as prescribed by 38 C.F.R. § 3.385, and the Board recognizes Dr. Brown's November 1994 statement wherein the doctor opined that the veteran's current hearing loss is associated with exposure to noise trauma during service. The Board points out that Dr. Brown based the opinion on a medical history provided by the veteran. Thus, the doctor's opinion is not sufficient to render the veteran's claim well grounded. The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has held that without a thorough review of the record, an opinion regarding the etiology of the underlying condition can be no better than the facts alleged by the veteran. Swan v. Brown, 5 Vet. App. 229, 233 (1993). In effect, it is mere speculation. See Black v. Brown, 5 Vet. App. 177, 180 (1993). The December 1994 opinion provides that the veteran's hearing loss was caused by post service occupational acoustic trauma. Moreover, the veteran is not entitled to service connection for bilateral hearing loss on a presumptive basis as the evidence does not establish that he was diagnosed as having sensorineural hearing loss within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for the claims of service connection as noted above. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). Increased Ratings As indicated supra, the increased rating claims are well grounded and thus plausible within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is satisfied that all relevant evidence has been obtained with respect to these claims and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's service connected disabilities at issue and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. See Francisco v. Brown, 7 Vet. App. 55 (1994) (where an increase in a disability rating is at issue, the current level of disability is of primary concern). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1999). Scar In a July 1957 rating action, the RO granted service connection for a scar of the lower eyelid of the right eye. A noncompensable evaluation was assigned, effective in May 1957. That evaluation has remained in effect. Subsequently, an informal claim for an increased rating for the service-connected right eye disorder was raised. At a personal hearing dated in April 1994, the veteran testified that the symptoms associated with the service- connected right eye disorder were more disabling than currently evaluated. Specifically, the veteran asserted that his eyes had deteriorating over the years. He described drainage and redness of the eyes. The record includes VA outpatient treatment records dated in 1993 and 1994 that reflect evaluations for glaucoma of both eyes. There were no specific findings with respect to the scar of the right eye. When examined by VA in August 1998, the veteran complained of decreased vision in the right eye. A physical examination of the right eye revealed tearing of clear fluid. A scar over the lower right eyelid measuring as 1.5 centimeters in length and described as well healed and without lesions was noted. The diagnoses included scar of the lower right eyelid, asymptomatic and non-deforming and allergic conjunctivitis that resulted in tearing of the eyes. The veteran's service-connected right eye disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 7800. Under this diagnostic code, scars of the head, face or neck warrant a 10 percent evaluation if they are moderately disfiguring. A 30 percent evaluation is warranted for a severely disfiguring scar of the head, face or neck, especially if it produces a marked and unsightly deformity of eyelids, lips or auricles. A 50 percent evaluation will be assigned for complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999). A note to Code 7800 provides that when in addition to tissue loss and cicatrization there is marked discoloration, color contrast, or the like, the 50 percent rating under Code 7800 may be increased to 80 percent, the 30 percent to 50 percent, and the 10 percent to 30 percent. The most repugnant, disfiguring conditions, including scars and diseases of the skin, may be submitted for central office rating, with several unretrouched photographs. The RO evaluated the service-connected scar of the right eyelid pursuant to DC 7805 which allows for the assignment of a rating evaluation based on limitation of function of the part affected. The Board would point out that the rating schedule contains other diagnostic codes pertaining to the skin. A 10 percent evaluation is assigned for scars that are superficial, poorly nourished, with repeated ulceration (DC 7803) and for scars that are superficial, tender and painful on objective demonstration (DC 7804). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). The Board has considered and finds the veteran's testimony credible. However, the medical evidence does not support the veteran's contention. The current evidence establishes that the service-connected scar of the right lower eyelid is non- deforming. Therefore, the assignment of a compensable evaluation under DC 7800 is not warranted. In addition, the evidence reflects that the scar is asymptomatic. Thus, the veteran is not entitled to a higher disability evaluation under DCs 7803 through 7805. While the evidence demonstrates that the veteran has other disorders involving the right eye including glaucoma and allergic conjunctivitis, there is no medical opinion relating such disorders to the service- connected right eye disorder. Moreover, the veteran's overall disability picture does not more nearly approximate the criteria for the next highest evaluation. 38 C.F.R. § 4.7. Knees In a November 1963 rating action, the RO granted service connection for myositis of the knees. A noncompensable evaluation was assigned. In May 1992, the veteran filed an informal claim for an increased rating for his service-connected knee disability. The report of a VA compensation and pension examination dated in February 1993 revealed complaints of bilateral knee pain. There was no evidence of injury to the muscle or myositis found on the examination. No damage to the bones or nerves was noted; strength was good. There was no evidence of pain. The diagnosis was no evidence of myositis of the knees. At a VA examination dated in January 1994, the veteran complained of pain in both knees with prolonged walking or standing or walking up and down stairs and stiffness in the knee joints. An examination of the left and right knees revealed crepitation on flexion and extension. There was slight tenderness on the lateral aspect of the right knee. There was no swelling or warmth. Drawer and McMurray signs were negative. Forward flexion of the right and left knees was to 140 degrees, and back extension was to 0 degrees. There was good muscle strength of the quadriceps with flexion and extension against resistance. The diagnoses were arthritis and myositis of the knees. At a hearing dated in April 1994, the veteran testified that the symptoms associated with his bilateral knee disability were more disabling than currently evaluated. The veteran testified that he had problems climbing stairs and that his disability limited many physical activities such as cutting grass. VA outpatient treatment records dated from 1993 to 1997 reflect treatment for bilateral knee problems. These records primarily show complaints of achiness and throbbing, right knee swelling, and bilateral knee pain with standing and prolonged bending. In April 1994, range of motion of the knees was from 0 to 140 degrees. In August 1994, range of motion of the knees was from 0 to 120 degrees. There was also mild patellofemoral crepitus and grinding. Evaluations in September and November 1994 revealed, in pertinent part, crepitus of the knees with range of motion (September 1994). In November 1994, there was normal motor and sensory testing. The assessments included mild to moderate patellofemoral syndrome, degenerative joint disease, and chondromalacia of the knees. X-rays of the knees dated in October 1996 were negative for evidence of osseous abnormality or evidence of degenerative arthritis. An examination dated in April 1997 revealed bilateral knee crepitus. There was no swelling. When examined by VA in August 1998, the veteran voiced complaints similar to those previously noted. The veteran rated the knee pain as 4 on a scale of 1 to 10 on a good day and 6 on a bad day. The veteran indicated that he took Ibuprofen or Tylenol, which provided no relief. He stated that elevating the legs or resting relieved the knee pain. The veteran related that he developed pain after standing more than two hours and that work caused his legs to cramp. The veteran related that the knee pain extended into the calves posteriorily and down into the feet and that he was not capable of walking more than seven or eight blocks. It was noted that the veteran has had several prior occupations including that of a Deputy U.S. Marshall from which he retired in 1994 and that he was currently employed as a Sheriff. A physical examination of the knees revealed bilateral audible crepitus on flexion. Range of motion of the right knee was from 0 to 120 degrees with audible crepitus. Range of motion of the left knee was from 0 to 150 degrees with some complaint of pain in the patellar area and audible crepitus. The knees were symmetrical. There was no swelling. Deep tendon reflexes were 2 plus in the lower extremities. Muscle strength was 4/5 on the right and 3/5 on the left. Motion, proprioception, vibration and sensation were intact. The veteran complained of decreased sensation over the lateral aspect of the left lower calf. Homans sign was negative. X-rays of the knees revealed mild degenerative changes. The diagnosis included mild degenerative joint disease of the knees, bilaterally, with residuals of pain and decreased range of motion of the right knee. There was no myositis of the knees. Myositis is rated on limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5021. Limitation of flexion of the leg to 60 degrees warrants a noncompensable evaluation, and limitation of flexion to 45 degrees a 10 percent evaluation. Code 5260. Limitation of extension of the leg to 5 degrees warrants a noncompensable evaluation; limitation of extension to 10 degrees warrants a 10 percent evaluation. Code 5261 Normal range of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (1997). The veteran's bilateral knee disability may also be evaluated under 38 C.F.R. § 4.71a, Codes 5257. A 10 percent evaluation is warranted for knee impairment resulting in slight recurrent subluxation or lateral instability. Code 5257. The Board has considered and finds that the veteran's testimony credible. However, the evidence does not establish that service-connected myositis of the knees causes limitation of motion of the knees. In fact, current medical evidence is negative for findings of myositis. The Board recognizes that the evidence demonstrates some limitation of motion of the knees and functional impairment due to pain; however, the evidence suggests that such limitation of motion is attributable to the degenerative joint disease of the knees which is not service-connected. Based on the foregoing the Board is of the view that the assignment of a higher disability evaluation for service-connected myositis of the knee is not warranted. DC 5021; 38 C.F.R. § 4.40, 4.45 (1999). The evidence of record does not present such an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards and thus warrant assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). With respect to the bilateral knee disability, the Board recognizes that his disability interfered with prior employment duties and responsibilities. However, the current evidence demonstrates that the veteran is currently employed as a Sheriff. Moreover, the veteran has not offered any objective evidence that service-connected bilateral knee disability or scar of the right lower eyelid have interfered with his employment status to a degree greater than that contemplated by the regular schedular standards, which are based on the average impairment of employment. Nor does the record reflect frequent periods of hospitalization for the disabilities. Hence, the record does not present an exceptional case where his currently assigned evaluations for the service-connected bilateral knee disability and scar of the right lower eyelid are found to be inadequate. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, in the absence of such factors, the Board determines that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met, and; therefore, affirms the RO's conclusion that a higher evaluation on an extraschedular basis is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for hearing loss is denied. Service connection for a right hip disability on a secondary basis is denied. An increased rating for a scar of the lower right eyelid is denied. An increased rating for myositis of the knees is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals