BVA9504954 DOCKET NO. 92-21 030 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a chronic left ankle disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to an increased rating for left knee reconstruction, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from December 1982 to May 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a February 1992 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 1994, the Board remanded the appeal for additional development of the record. The RO completed the requested development and the appeal is now ready for appellate consideration. This case was previously developed to include the issue of entitlement to service connection for an ankle disability. In VA Forms 9 received from the veteran in August 1992 and November 1994, he indicated, in part, that he was pursuing the issue of service connection for left ankle disability. Accordingly, the Board is limiting its consideration to the left ankle only. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that as a result of acoustic trauma in service he acquired a bilateral hearing loss. He also maintains that he acquired a chronic left ankle disability in service. He contends that his service connected reconstructed left knee disability warrants an evaluation in excess of 20 percent, since he currently experiences crepitance, pain, and instability of the left knee joint. 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 preponderance of the evidence is against the claims for entitlement to service connection for chronic left ankle disability and entitlement to an increased rating for left reconstructed knee disability. It is further the decision of the Board that sufficient evidence has not been submitted to justify a belief by a fair and impartial individual that the appellant's claim for entitlement to service connection for bilateral hearing loss is well-grounded. FINDINGS OF FACT 1. Any left ankle symptomatology present during service was not more than acute and transitory and resolved with no residual chronic disability demonstrated. 2. Service-connected left reconstructed knee is manifested by mild crepitation on motion, minimal limitation of motion, and complaints of pain on motion. 3. The appellant has submitted no credible evidence of the existence of a current hearing loss. As such, a plausible claim for entitlement to service connection for bilateral hearing loss disability has not been submitted. CONCLUSIONS OF LAW 1. A chronic left ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1994). 2. The criteria for an evaluation in excess of 20 percent for left reconstructed knee have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, and Part 4, 4.7, 4.40, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260 and 5261 (1994). 3. A well-grounded claim for service connection for bilateral hearing loss has not been submitted. 38 U.S.C.A. §§ 1110, 1131, 5107, 7105(d) (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. History. Service medical records show that, in August 1983, the veteran received treatment for a sprained right ankle, and in April 1985 the veteran received treatment for a left ankle strain resulting from a twisting injury. Limited range of motion and pain were noted upon manipulation of the left ankle. An X-ray was negative, and the examiner ruled out a fracture of the left foot. Two additional left ankle sprains were noted in May 1986, for which the veteran was issued a support bandage and crutches. Associated findings included left ankle tenderness, swelling, and a positive tilt, and an X-ray of May 26, 1986 was again negative for any left ankle fracture. In June 1986, the veteran received treatment for a left ankle sprain, with a history of recurrent sprains of both ankles, left greater than right. At that time, the veteran entered a rehabilitation program with a goal of strengthening and improving the balance of both ankles. Later in June 1986, the veteran was treated for a right ankle sprain, at which time he reported a history of recurrent ankle strains since 1984. The examiner placed the veteran in a short leg cast, noting that the veteran is "very active and will re-strain if not immobilized adequately." In July 1986, after 4 weeks in the strengthening program, the veteran was noted as still having problems with the left ankle. Physical examination at that time revealed left ankle tenderness over the talofibular ligament, with a positive drawer sign. In September 1986, left ankle laxity was noted, with "good improvement" and the veteran reported difficulty running in formation. In November 1987, the veteran was again treated for a left ankle sprain. The examiner noted slight localized swelling of the left ankle joint, with a full range of motion, no hindrance on weight bearing, and good distal pulses. Service medical records also include audiologic testing of February 1988, January 1989, August 1989, and December 1990, although speech discrimination and recognition ability was not noted at any time while the veteran was in service. In February 1988, the veteran was noted as having been recently exposed to noise, although he was then considered as not routinely exposed to hazardous noises. On an audiometric evaluation conducted in February 1988, the pure tone air conduction thresholds were 0, 0, 5, 20 and 15 decibels in the right ear, and 0, 0, 20, 20 and 15 decibels in the left ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. On an audiometric evaluation conducted in January 1989, the pure tone air conduction thresholds were 15, 5, 5, 20 and 10 decibels in the right ear, and 10, 5, 20, 5 and 10 decibels in the left ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. The veteran was noted as routinely exposed to hazardous noise. On an audiometric evaluation conducted in August 1989, the pure tone air conduction thresholds were 5, 5, 10, 5 and 10 decibels in the right ear, and 5, 5, 5, 5 and 5 decibels in the left ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. In October 1990, the veteran underwent arthroscopy with debridement of the area of the anterior cruciate. His medical history showed that he had undergone an anterior cruciate reconstruction in 1988. On an audiometric evaluation conducted in December 1990, the pure tone air conduction thresholds were 20, 0, 40, 25 and 15 decibels in the right ear, and 10, 0, 10, 15 and 10 decibels in the left ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. The veteran was honorably discharged in May 1991 due to his later service-connected left knee disability. On an audiometric evaluation conducted by the Department of Veterans Affairs (VA) in July 1991, the veteran reported decreased hearing in both ears over the past year, with problems hearing in most situations, less difficulty in the left ear. He denied any pain, drainage, surgery, or treatment for his ears or his hearing, and he gave a history of noise exposure during service, at which time he did not use ear protection. The pure tone air conduction thresholds were 10, 5, 5, 10 and 10 decibels in the right ear, and 10, 5, 10, 15 and 15 decibels in the left ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. Speech recognition ability was 100 percent in both the right and left ears, and the examiner noted normal hearing bilaterally. On a VA examination conducted in July 1991, the examiner noted a medical history to include status post failed anterior cruciate ligament reconstruction surgery of the left knee. At that time, the veteran complained of left knee pain and instability. The physical examination revealed tenderness over the knee, no swelling or effusion was noted, and there was pain and crepitus associated with movement. A deep knee bend was noted to be painful and some instability of the left knee was noted. There was some tenderness around the lateral malleolar area, and there was a full range of motion of the left ankle. The left knee X-ray showed a screw inserted through the lateral condyle of the femur and another screw was seen inserted through the midline of the proximal end of the tibia from previous surgery. There was no evidence of a fracture or joint effusion, and the impression was status post surgery of the left knee. An X-ray of the ankles showed no evidence of fracture or dislocation. A bony fragment was noted adjacent to the anterior aspect of the left talus, consistent with an accessory ossicle. The impression was no fracture noted. The diagnoses, in relevant part, were status post reconstructive surgery, left knee, with instability, and mild residuals of a left ankle injury. The veteran failed to report for an additionally scheduled orthopedic examination. By rating decision of February 1992, the RO granted service connection for reconstruction, left knee, and a 20 percent evaluation was assigned. That decision also denied the veteran's claims for entitlement to service connection for bilateral hearing loss and a chronic ankle disability. On a VA examination of June 1994, the veteran reported a history of left knee symptomatology resulting from an in-service injury. The veteran indicated that in 1986, arthrocentesis was performed to remove bloody fluid from the knee, and because of continuing left knee problems, an arthroscopy was performed in March 1988. That procedure revealed an anterior cruciate ligament tear, with a tear to the posterior horn of the medial meniscus, and in December 1988 an arthrotomy was performed with reconstruction of the left knee. An additional arthroscopic repair of the anterior cruciate ligament area was performed in October 1990. Since then, the veteran reported experiencing a continued popping sensation in the left knee, with instability and give-way. He reported wearing a elastic knee brace, with occasional use of a Don Joy brace for more strenuous activity. For pain or swelling in his left knee he medicated with Motrin. He also reported that his ankles twist easily, left ankle weaker than the right ankle, and this condition requires him to walk carefully. The physical examination of the left knee in June 1994 revealed no swelling or effusion, with mild crepitation on motion of both knees. There was no tenderness to palpation around the left knee joint, and both anterior and posterior drawer tests were negative. No left knee instability was noted either when fully extended or when flexed at 30 degrees. The left knee flexed to 130 degrees, and extension was to 0 degrees. There was no swelling or tenderness to palpation noted at either of the posterior popliteal fossa. The veteran performed deep knee bends normally on each knee and he was able to duck walk and hop normally on each leg. His lower extremities measured 37 inches in length equal bilaterally. Circumference of the thighs were 20.5 inches at the right thigh and 20 inches at the left thigh. Circumference of the calves was 17.25 inches at the right calf, and 17 inches at the left calf. The examiner's diagnosis was residuals, anterior cruciate ligament and medial meniscus tear, left knee, post-surgical repair, as well as traumatic arthritis, left knee. An X-ray of the left knee showed a post-surgical knee, with two screws, one in the projection of the lateral condyle and the other through the proximal tibial metaphysis. Minimal narrowing of the medial joint space was also present. In June 1994, a physical examination of the left ankle was also conducted, which revealed no swelling or tenderness to palpation at either ankle, and the examiner noted no instability of either ankle. Both ankles dorsiflexed to 15 degrees and both ankles showed plantar flexion to 35 degrees. An X-ray of the left ankle was normal and noted no bone or joint abnormality. The diagnosis was history of bilateral ankle sprains. II. Evaluation of Left Knee Disability The Board finds that the veteran's claim for entitlement to an increased rating for reconstruction, left knee, currently evaluated as 20 percent disabling, is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The severity of the veteran's service-connected reconstructed left knee disability may be ascertained for VA rating purposes by application of 38 C.F.R. § 4.71a, Part 4 (1994), Diagnostic Codes 5003, 5010, 5257, 5260 and 5261 of the VA's Schedule for Rating Disabilities. Arthritis due to trauma, substantiated by X-ray findings, will be rated by analogy to degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis, substantiated by X-ray finding, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1994). A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability, and severe recurrent subluxation or lateral instability is assigned a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1994). A 20 percent evaluation is assigned for limitation of flexion to 30 degrees, and a 30 percent evaluation is assigned for limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1994). A 20 percent evaluation is assigned for limitation of extension of the leg to 15 degrees, and a 30 percent evaluation is assigned for limitation of extension to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (1994). After a review of the clinical evidence of record, the Board concludes that the criteria for an evaluation in excess of 20 percent are not met. That is, the veteran's service-connected left knee disability, which now includes traumatic arthritis, is demonstrated to result in pain and functional impairment no greater than that contemplated by a 20 percent evaluation. The June 1994 VA examination showed almost a full range of motion of the veteran's left knee, and subluxation or lateral instability was not shown. Some instability was demonstrated at the July 1991 examination. At the 1994 examination, there was some mild crepitation on motion of the left knee, but no swelling or tenderness of the left knee was noted on palpation, and the examiner noted that the veteran was able to duck walk and hop normally on both legs. Calf and thigh measurements demonstrated no significant atrophy of the left lower extremity. Deep knee bending was noted to be painful at the 1991 examination. The veteran has complained of pain on motion of the knee, but the current 20 percent evaluation assigned under the Schedule contemplates some pain and discomfort, and the veteran has not demonstrated such pain so as to warrant an evaluation in excess of 20 percent. As a whole, the evidence tends to establish that the appellant experiences no more than moderate impairment of the left knee, as contemplated by the current 20 percent evaluation. The veteran's assertions regarding the inadequacy of the recent rating examination have been considered. He has indicated that he could not perform the movements attributed to him by the examiner or could only perform the motion once. In this regard, it is noted that the examining physician's report best reflects physical findings as shown at the examination, although the veteran is certainly competent to note what activities caused him pain. Also, the fact that he wore his knee brace does not invalidate the examination results. In fact, the veteran reported that he wears an elastic knee brace, and wears a Don Joy brace when undertaking more strenuous activity. In reaching the determination that an increased rating for reconstruction, left knee disability is not warranted, consideration has been given to the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The Board has applied all the provisions of Parts 3 and 4 that would reasonably apply in this case. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for a service-connected disability, then an extraschedular evaluation will be assigned. However, the veteran has not presented any evidence of an exceptional or unusual disability because of the service-connected residuals of the right medial meniscectomy. Thus, with consideration of all the evidence of record, the assignment of a higher evaluation on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. III. Service Connection for Chronic Left Ankle Disability The Board finds that the veteran's claim for service connection for chronic left ankle disability is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, he has presented a claim that is plausible. Service connection may be established for a disability resulting from a personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.102, 3.303(d) (1994). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement for evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnoses of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1994). Service medical records show that the veteran received treatment for multiple left ankle sprains from April 1985 through June 1986, that were no more than acute and transitory and resolved, with no residual disability shown. During that period, repeated X-rays showed no fracture of the left ankle, and no permanent abnormality of the left ankle was noted. Diagnosis was ankle sprain. In June 1986, the veteran entered a physical therapy program to strengthen both ankles. Upon completion of this program in September 1986, the veteran showed "good improvement," and he was able to resume running, albeit with some difficulty noted when in running formation. While he was then considered a "candidate for reconstruction," this procedure was not performed on either ankle. Service medical records note no further complaints of, treatment for, or diagnosis of left ankle sprains until November 1987. At that time, slight localized swelling was noted, with full range of motion, and there was no interference with weight bearing. No permanent impairment of the left ankle was noted in November 1987, and the veteran was instructed to temporarily elevate the ankle, and to use ice and an ace wrap. The remaining service medical records, pertinent to his service through May 1991, a period of approximately 3 and 1/2 years, are silent as to any complaints of, treatment for, or diagnosis of left ankle sprain, and residual left ankle disability is not shown at separation from service in May 1991. Despite extensive and repeated orthopedic evaluations conducted in conjunction with the care and treatment of his later service-connected left knee disability, the veteran reported no additional complaints of left ankle symptomatology during these last several years of service. On balance, while some repeated left ankle sprains are shown for a period of over one year prior to September 1986, the service medical records show that any left ankle symptomatology was no more than acute and transitory and resolved, since the veteran was repeatedly able to resume his "very active" physical routine. While a left ankle sprain was again noted in November 1987, no chronic, residual left ankle disability was shown thereafter. Current left ankle disability is similarly not shown on VA examination conducted in 1994. Although VA X-rays of July 1991 showed a bony fragment adjacent to the anterior aspect of the left talus, consistent with an accessory ossicle, X-rays of June 1994 showed no such bone or joint abnormalities, and physical examination of June 1994 showed no current residual left ankle disability. The veteran did not indicate additional left ankle sprains since service, but stated only that his left ankle weakness requires that he walk carefully. While mild residuals of a left ankle injury, apparently manifested by tenderness around the lateral malleolar area, were diagnosed at the 1991 rating examination, no specific residuals were identified at the later examination. Thus, the veteran is not shown to currently manifest a left ankle disability. Accordingly, the preponderance of the evidence is against the claim for entitlement to service connection for a chronic left ankle disability. III. Service Connection for Bilateral Hearing Loss Disability The threshold question that must be resolved with regard to every claim is whether the appellant has presented evidence that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). This statutory requirement of well-groundedness places upon a claimant the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded, that is, that the claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In that case, the United States Court of Veterans Appeals (the Court) defined a plausible claim as "one which is meritorious on its own or capable of substantiation." However, if such a plausible claim is not presented, the appeal fails as to that claim, and the Board is under no duty to assist in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In this case, the appellant has not met this initial statutory requirement, and the claim is dismissed as not well-grounded, since current hearing loss disability of either the right or left ear is not shown. For the purposes of applying the law administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 (1994). The appellant contends that he acquired a bilateral hearing loss disability as a result of exposure to acoustic trauma in service. However, defective hearing is not currently shown on VA audiologic testing conducted in June 1991; that is, the veteran's hearing acuity does not meet the schedular criteria set out in 38 C.F.R. § 3.385 (1994). In the absence of evidence indicating the presence of a disability or disease, a claim for service connection is not plausible and accordingly is not well grounded. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Service medical records indicate no hearing loss upon testing in February 1988, January 1989, and August 1989, despite some exposure to acoustic trauma noted while in service. While acoustic testing of December 1990 indicated right ear defective hearing at 2,000 Hertz, speech recognition ability was not noted, and hearing impairment was neither complained of nor diagnosed at that time. Since the most recent testing indicates no current bilateral hearing loss disability, and since current bilateral hearing loss disability is not otherwise shown by the evidence of record, the claim for service connection is not plausible, regardless of the December 1990 right ear findings. The Court has held that a claim that is not well grounded must be dismissed by the Board. Recent Court precedent opinion underlines this initial burden: [An appellant] claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); see Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). If a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Boeck v. Brown, 6 Vet. App. 14, 17 (1993). The appellant has not submitted a claim that is meritorious on its own or capable of substantiation; he has not supported his claim for entitlement to service connection for bilateral hearing loss disability with any plausible evidence of such current disability. The Board must accordingly find that the claim for entitlement to service connection for bilateral hearing loss disability, is not well grounded. Since the claim is not a well- grounded one, it must be dismissed as no question of fact or law has been submitted over which the Board has jurisdiction. 38 U.S.C.A. §§ 5107, 7105(d) (West 1991). Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). ORDER The claim for entitlement to service connection for left ankle disability is denied. The claim for entitlement to an evaluation in excess of 20 percent for left knee reconstruction, with traumatic arthritis, is denied. The claim for entitlement to service connection for bilateral hearing loss disability is dismissed. BARBARA B. COPELAND 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.