judge_norm: MARK W GREENSTREET

condition: knee

text:
Citation Nr: 9919000
Decision Date: 07/12/99    Archive Date: 07/20/99

DOCKET NO.  96-24 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUE

Entitlement to service connection for a right knee condition.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. L. Wight, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1972 to June
1976.

This case initially came before the Board of Veterans'
Appeals (Board) by means of May 1995 rating decision rendered
by the St. Petersburg, Florida, Regional Office (RO) of the
Department of Veterans Affairs (VA) where service connection
for a right knee condition was denied.  The veteran appealed
this decision, and the Board remanded the case, in May 1998,
to the RO for further evidentiary review and development.
Having completed this, the case is now again before the
Board.

FINDINGS OF FACT

1.  All evidence necessary for an equitable disposition of
the veteran's claim has been developed.

2.  The evidence does not show that any current right knee
condition was incurred in service.

CONCLUSION OF LAW

The veteran's current right knee condition was not incurred
in or aggravated by service.  38 U.S.C.A. �� 1110, 1111, 5107
(West 1991); 38 C.F.R. � 3.303, 3.304, 3.306 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the appellant's claim is
"well grounded" within the meaning of 38 U.S.C.A. � 5107(a)
(West 1991); that is, he has presented a claim that is
plausible.  He has not alleged that there are any records of
probative value that may be obtained which have not already
been associated with his claims folder.  The Board
accordingly finds that the duty to assist the appellant, as
mandated by 38 U.S.C.A. � 5107(a) (West 1991), has been
satisfied.

The veteran contends that he injured his right knee while
inservice in September 1974.  In a Travel Board Hearing in
February 1998, he stated that he was playing football when he
injured the knee.   However, a review of his service records
fails to reveal any recorded complaints, treatment, or
diagnosis of a right knee condition while in service.

The evidence shows that after separating from service the
veteran worked as a police office, a security guard, a
corrections officer and a private investigator.  While he
complains of recurrent pain and swelling and periods in which
his knee would lock up, the evidence shows that he first
sought treatment for his right knee in April 1991.  At that
time he reported that he had sustained an injury to his right
knee after falling at work in February 1991.  A report from
Dr. Tom C. Haney dated April 1991 indicates that the veteran
stated that he felt a pop followed by swelling.  A outpatient
treatment record from December 1991 notes that the veteran
related a history of falling eight to nine feet onto a cement
floor while at work in February 1991.  A postoperative report
indicates an onset of a right knee condition of February 1991
and that he underwent surgery to remove a fat pad in his
right knee in April 1992.

While the post service medical records contemporaneous to his
surgery for a knee disorder relate his knee condition to a
work injury, the Board notes an outpatient treatment record
from Dr. C. Strong-Smith from April 1997 which indicates,
based on the veteran's reported history, that his knee pain
was related to service. The Board notes that it is not
required to accept doctors' opinions that are based upon the
appellant's recitation of medical history. Godfrey v. Brown,
8 Vet. App. 113 (1995), see also, Owens v. Brown, 7 Vet. App.
429 (1995).  It is apparent that Dr. Strong-Smith formed her
opinion based on the veteran's account of his medical history
while in service.  The evidence does not show that she
reviewed the veteran's service medical records or any other
related documents which would have enabled her to form an
opinion on an independent basis.  Elkins v. Brown, 5 Vet.
App. 474, 478 (1993); see also Swann v. Brown, 5 Vet. App.
229 (1993). Accordingly, the Board must find Dr. Strong-
Smith's statement to be unpersuasive as to the relation of
any current right knee disability to service.

The Board, having thoroughly reviewed the claims file, finds
that the preponderance of the evidence demonstrates that the
veteran's current right knee condition is not related to an
inservice disease or injury, nor was a pre-service right knee
condition aggravated by service.  Therefore, the Board must
also find that the criteria for entitlement to service
connection for a service connection for a right knee
condition are not met.  Therefore, the appellant's claim is
denied.  38 U.S.C.A. �� 1110, 1111, 5107 (West 1991);
38 C.F.R. � 3.303, 3.304, 3.306 (1998).  The Board must also
point out that the veteran is free to submit new and material
evidence, and reopen his claim for service connection, at any
time.

ORDER

Entitlement to service connection for a right knee condition
is denied.

	MARK W. GREENSTREET
	Member, Board of Veterans' Appeals


series: legacy

judge_norm: RONALD R BOSCH

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text:
Citation Nr: 9921000
Decision Date: 07/28/99    Archive Date: 08/03/99

DOCKET NO.  96-07 132	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUES

1. Entitlement to an increased evaluation for the residuals
of a fracture of the fifth metacarpal of the right hand
with amputation, little finger (major), currently
evaluated as 10 percent disabling.

2. Entitlement to an increased evaluation for internal
derangement of the right knee, with removal of meniscus
and ligamentous repair, currently evaluated as 10 percent
disabling.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M.S. Lane, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1954 to
October 1957 and from March 1961 to December 1964.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an August 1995 rating decision by the North
Little Rock, Arkansas, Department of Veterans Affairs (VA)
Regional Office (RO), which denied the veteran's claim of
entitlement to an increased evaluation for the residuals of a
fracture of the fifth metacarpal of the right hand with
amputation, little finger (major), and entitlement to an
increased evaluation for internal derangement of the right
knee, with removal of meniscus and ligamentous repair.  In
March 1997, the Board remanded these claims for further
development.

In March 1997 decision, the Board also determined that new
and material evidence had not been submitted to reopen a
claim of entitlement to service connection for a cervical
spine injury.  The Board also referred to the RO a claim of
entitlement to service connection for degenerative joint
disease of the right knee.

On remand, the RO denied an increased rating for the
veteran's right knee injury, but granted service connection
for degenerative joint disease of the right knee, and
assigned a separate 10 percent disability evaluation.  The
Board notes that the appellant is generally presumed to be
seeking the maximum available by law, and it follows that
such a claim remains in controversy where less than the
maximum benefit available is awarded.  AB v. Brown, 6 Vet.
App. 35 (1993).

However, in a May 1999 letter, and in the VA Form 646
submitted in June 1999, the veteran and his representative
indicated that the veteran did not wish to appeal the 10
percent evaluation granted for degenerative arthritis of the
right knee.

FINDINGS OF FACT

1. The veteran's residuals of a fracture of the fifth
metacarpal are manifested by amputation of the proximal
interphalangeal joint, without metacarpal resection.

2. The veteran's internal derangement of the right knee, with
removal of meniscus and ligamentous repair, is manifested
by no more than mild limitation of motion, some muscle
weakness, and complaints of pain, with no evidence of
ankylosis or additional functional loss due to pain.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 10 percent for
the residuals of a fracture of the fifth metacarpal of the
right hand with amputation, little finger (major), have
not been met.  38 U.S.C.A. � 1155, 5107 (West 1991);
38 C.F.R. � 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5156
(1998).

2. The criteria for an evaluation in excess of 10 percent for
internal derangement of the right knee, with removal of
meniscus and ligamentous repair, have not been met.
38 U.S.C.A. � 1155, 5107; 38 C.F.R. � 4.7, 4.40, 4.45,
4.50, 4.71a, Diagnostic Codes, 5259, 5256, 5262, 5260,
5261 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

Initially, the Board concludes that the veteran's claims are
well grounded within the meaning of the statutes and judicial
construction.  See 38 U.S.C.A. � 5107(a) (West 1991).  When a
veteran claims that he has suffered an increase in
disability, or that the symptoms of his disability are more
severe than is contemplated by the currently assigned rating,
that claim is generally considered well grounded.
Bruce v. West, 11 Vet. App. 405, 409 (1998); Proscelle v.
Derwinski, 2 Vet. App. 629, 631-632 (1992).

Upon the submission of a well-grounded claim, VA has a duty
to assist the veteran in developing the facts pertinent to
his claim.  38 U.S.C.A. � 5107.  In the instant case, there
is ample medical and other evidence of record, the veteran
has been provided with several recent VA examinations, and
there is no indication that there are additional records that
have not been obtained and which would be pertinent to the
present claims.  Thus, no further development is required in
order to comply with VA's duty to assist as mandated by
38 U.S.C.A. � 5107(a).

General Criteria

Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Schedule), 38 C.F.R.
Part 4 (1998).

The percentage ratings contained in the Schedule represent,
as far as can be practicably determined, the average
impairment in earning capacity resulting from diseases and
injuries incurred or aggravated during military service and
their residual conditions in civil occupations.  38 U.S.C.A.
� 1155; 38 C.F.R. � 4.1 (1998).

In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations that are potentially
applicable through the assertions and issues raised in the
record, and to explain the reasons and bases for its
conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Governing regulations include 38 C.F.R. �� 4.1 and 4.2
(1998), which require the evaluation of the complete medical
history of the veteran's condition.

Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). ).  Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating.  Otherwise the lower rating will be assigned.
38 C.F.R. � 4.7 (1998).  All benefit of the doubt will be
resolved in the veteran's favor.  38 C.F.R. � 4.3 (1998).

In general, all disabilities, including those arising from a
single disease entity, are rated separately, and all
disability ratings are then combined in accordance with
38 C.F.R. � 4.25 (1998).

However, the evaluation of the same "disability" or the
same "manifestations" under various diagnoses is
prohibited.  38 C.F.R. � 4.14 (1997).  The Court has held
that a claimant may not be compensated twice for the same
symptomatology as "such a result would overcompensate the
claimant for the actual impairment of his earning capacity."
Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would
result in pyramiding, contrary to the provisions of 38 C.F.R.
� 4.14.  The Court has acknowledged, however, that when a
veteran has separate and distinct manifestations attributable
to the same injury, he should be compensated under different
diagnostic codes.  Esteban v. Brown, 6 Vet. App. 259 (1994);
Fanning v. Brown, 4 Vet. App 225 (1993).

The United States Court of Appeals for Veterans Claims
(Court) has held that a separate, additional rating may be
assigned if the veteran's knee disability is manifested by a
scar that is poorly nourished with repeated ulceration, a
scar that is tender and painful upon objective demonstration,
or a scar otherwise causing limitation of function.
38 C.F.R. � 4.118, Diagnostic Codes 7803, 7804 7805 (1998); .
Esteban, supra.

In addition, the evaluation of a service-connected disability
involving a joint rated on limitation of motion requires
adequate consideration of functional loss due to pain under
38 C.F.R. � 4.40 and functional loss due to weakness,
fatigability, incoordination or pain on movement of a joint
under 38 C.F.R. � 4.45.  See DeLuca v. Brown, 8 Vet. App. 202
(1995).

The provisions of 38 C.F.R. � 4.40 state that the disability
of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance.  According to
this regulation, it is essential that the examination on
which ratings are based adequately portrays the anatomical
damage, and the functional loss, with respect to these
elements.  In addition, the regulations state that the
functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
veteran undertaking the motion.  Weakness is as important as
limitation of motion, and a part which becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. � 4.40.

The provisions of 38 C.F.R. � 4.45 state that when evaluating
the joints, inquiry will be directed as to whether there is
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, and
pain on movement.

With any form of arthritis, painful motion is an important
factor of disability.  The intent of the rating schedule is
to recognize painful motion with joint or periarticular
pathology as productive of disability.  It is the intention
to recognize actually painful, unstable, or malaligned
joints, due to healed injury, as entitled to at least the
minimum compensable rating for the joint.  The joints
involved should be tested for pain on both active and passive
motion, in weight bearing and nonweight-bearing and, if
possible, with range of the opposite undamaged joint.
38 C.F.R. � 4.59.

When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the veteran.  38
U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court
stated that "a veteran need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail."  To deny a claim on its merits, the
evidence must preponderate against the claim.  See also
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

I.  Entitlement to an increased
evaluation for the residuals of a
fracture of the fifth metacarpal of the
right hand with amputation, little finger
(major), currently evaluated as 10
percent disabling.

Factual Background

Service medical records reflect that in July 1957, the
veteran suffered a simple fracture of the fifth metacarpal of
the right hand.  The examiner noted that there was no artery
or nerve involvement.  In December 1958, the RO granted
service connection for the veteran's fracture of the fifth
metacarpal of the right hand, and assigned a zero percent
disability rating.

After discharge, the veteran experienced a contracture of the
right little finger, which necessitated removal at the
proximal interphalangeal joint.  In October 1966, the RO
increased the veteran's disability evaluation to 10 percent.

In July 1994, the veteran filed a claim of entitlement to an
increased rating for his service-connected residuals of a
fracture of the fifth metacarpal of the right hand with
amputation, little finger (major).

A VA medical certificate dated in July 1994 shows complaints
of pain and swelling in the right hand.

In October 1994, the veteran was provided with a VA
examination.  He reported intermittent pain and stiffness in
his right fifth finger with diminished grip strength and
increased discomfort during cold weather.  The VA examiner
noted that examination of the right hand did not reveal a
surgical scar, but that the little finger had been amputated
previously at the proximal interphalangeal joint.  The
examiner found hyperesthesias at the distal stump and that
the veteran's grip strength was reduced by 25 percent.  The
examiner noted full range of motion in the
metacarpophalangeal joints, and diagnosed the veteran with
the residuals of a fracture of the fifth metacarpal, post-
operative with amputation of the fifth finger.

In December 1994, the veteran was provided with a local
hearing.  The testimony offered at this hearing related
primarily to the veteran's claim of entitlement to service
connection for a cervical spine injury.

In his January 1996 substantive appeal, the veteran indicated
that, contrary to the VA examiner's report, he did have a
four-inch scar on his right hand.  He contended that the
damage to his little finger was caused by too much pressure
in the cast that he wore during service.

In February 1996, the Social Security Administration found
that the veteran suffers from several severe impairments of a
progressive nature and that due to those disabilities, he no
longer retains the residual functional capacity to perform
the requirements of any jobs which exist in significant
numbers at even a sedentary level of exertion.

VA outpatient records dated in March 1996 and April 1996 show
complaints of severe pain and dysfunction in the right hand.
The veteran reported that he had been experiencing continuous
pain in his fifth metacarpal joint and swelling in his hand.
The examiner noted that there was no swelling on the day of
examination, and indicated full extension in the fifth
metacarpal with flexion to 90 degrees.  X-rays were noted to
show degenerative joint disease of the fifth metacarpal
joint.

In April 1996, the veteran was provided with another local
hearing.  The veteran testified that he experiences pain in
his right hand and that it is difficult to do any kind of
activity with his right hand without it swelling.  He further
testified that he has degenerative arthritis in the right
hand, and that he has been advised by a physician that the
only way to solve his hand problems is to take off another
part of his hand.  He also demonstrated that he still has a
scar from his amputation.

In June 1996, another VA examination was conducted.  The
examiner found good range of motion at the metacarpal joint,
and noted that the veteran could make a tight fist and fully
extend his finger.  The examiner also noted that the veteran
showed some discomfort in manipulating the fifth metacarpal
joint phalangeal joint, but was otherwise within normal
limits.  The diagnosis provided was amputation of the fifth
ray of the proximal interphalangeal joint.

In October 1997, another VA examination was provided.  The VA
examiner found that scar from the amputation was well healed,
but noted the veteran complained when the scar was palpated.
The examiner indicated that the dorsum of the hand was
carefully inspected and it was difficult to see the scar in
the interval between the 4th and fifth metacarpal shafts or
along the dorsum.

X-rays revealed a deformity of the fifth metacarpal showing
slight increase in bowing on the oblique view and a deformity
in the region of the neck of the metacarpal along the ulnar
aspect.  The examiner also found that the integrity of the
joint has been preserved and could not see any degenerative
changes within the joint itself.  The examiner noted that he
was unable to find arthritis in the metacarpophalangeal
articulation.  The VA examiner concluded that the veteran's
right hand was functional and that the degree of impairment
would be the equivalent effect of loss of the substance of
the fifth finger distal to the interphalangeal articulation.

In a statement submitted in May 1999, the veteran indicated
that while it is true that the scar on his right hand is
healed, he has never contended that the scar is causing him
any trouble.  He contended that the problem is within his
hand, and indicated that as a result, he has no grip of any
kind, and experiences both pain and stiffness.

Analysis

The veteran's service-connected residuals of a fracture of
the fifth metacarpal of the right hand with amputation,
little finger (major), are currently rated at 10 percent
under 38 C.F.R. � 4.71a, Diagnostic Code 5156 [amputation of
the little finger].

Under Diagnostic Code 5156, amputation of the little finger
of the major or minor extremity, when it is without
metatarsal resection at the proximal interphalangeal joint or
proximal thereto, is rated as 10 percent disabling.  When
there is metacarpal resection (more than one-half of the bone
lost), a 20 percent rating is warranted for either major or
minor extremity pursuant to 38 C.F.R. � 4.71a, Diagnostic
Code 5156.

After reviewing the record, the Board finds that the
preponderance of the evidence is against a rating in excess
of the 10 percent already assigned under Diagnostic Code 5156
for the veteran's residuals of a fracture of the fifth
metacarpal of the right hand with amputation, little finger
(major).

The Board acknowledges the veteran's complaints of pain and
stiffness in his hand.  However, Diagnostic Code 5156 assigns
specific evaluations based on the level of amputation.  In
order to warrant a higher disability rating under the
applicable criteria, the veteran disability would have to
include amputation of the little finger with metacarpal
resection.  However, in this case, the medical evidence of
record clearly demonstrates amputation at the proximal
interphalangeal joint, and no more, as is warranted for a 10
percent rating.

As the veteran does have scarring as a result of his
amputation, the Board has considered the criteria of
Diagnostic Codes 7803, 7804, and 7805.  However, repeated
private and VA examinations have shown a well-healed scar
with no residual pain or tenderness.  In fact, in a May 1999
statement, the veteran himself indicated that his scar is
indeed well healed, and that he has never contended that the
scar itself is causing any of his problems.  As such, a
separate compensable disability evaluation under any of the
codes for rating residual scarring is not warranted for the
veteran's right hand.

In light of the veteran's complaints of pain and limitation
of motion, the Board has also considered the criteria of
38 C.F.R. �� 4.40, 4.45, and 4.59.  However, there is no
clinical objective evidence of pathology of functional loss
due to pain, including limitation of motion, weakness,
arthritis, etc., which would permit assignment of a higher
evaluation under these criteria.  The Board acknowledges the
veteran's ongoing complaints of pain.  However, upon
objective examination, the veteran's disability has been
consistently shown to be virtually asymptomatic, with only
slight discomfort noted during the June 1996 examination when
manipulating the fifth metacarpal phalangeal joint.  In fact,
the October 1997 VA examiner specifically found that his
degree of impairment would be the equivalent effect of the
loss of the substance of the fifth finger distal to the
interphalangeal articulation, which is already contemplated
by the criteria of Diagnostic Code 5156.  Although
degenerative joint disease in the fifth metacarpal was noted
in an April 1996 VA outpatient record, later VA examinations
and x-rays were unable to find any such evidence.

Additionally, the October 1997 examiner noted that the
veteran appeared to have excellent pinch, hook, and grasp
with his hand, and was able to contact the ring, middle, and
index fingers to the tips of the palm on fist-making.  There
were no findings of weakness, deformity, atrophy,
fasciculation, or other signs of disability sufficient to
warrant a higher disability rating for functional loss.

For the foregoing reasons, the Board concludes that the
preponderance of the evidence is against a rating in excess
of 10 percent for the veteran's residuals of a fracture of
the fifth metacarpal of the right hand with amputation,
little finger (major).

II.  Entitlement to an increased
evaluation for internal derangement of
the right knee, with removal of meniscus
and ligamentous repair, currently
evaluated as 10 percent disabling.

Factual Background

Service medical records reflect that in June 1962, the
veteran reported increasing pain in his right knee.  In
October 1962, he underwent surgery in which the meniscus was
removed and the anterior cruciate was repaired.  The veteran
reported at the time that he had had a football injury to his
knee in 1954, in addition to a compound fracture of the tibia
when he was 18 that left no complications.  In October 1966,
the RO granted service connection for internal derangement of
the right knee, with removal of meniscus and ligamentous
repair, and assigned a 10 percent disability evaluation under
the criteria of 38 C.F.R. � 4.71a, Diagnostic Code 5259.

In July 1994, the veteran filed a claim of entitlement to an
increased evaluation for his service-connected internal
derangement of the right knee.

In August 1995, the RO denied this claim, but the August 1995
rating decision and the January 1996 statement of the case
indicate that the RO felt that the veteran's disability was
more appropriately rated under the criteria of 38 C.F.R.
� 4.71a, Diagnostic Code 5261.

VA outpatient records dated between July 1994 and September
1994 show complaints of chronic right knee pain.  During a
July examination, a VA examiner noted that the veteran's
right knee was slightly tender medially.

In October 1994, the veteran was provided with a VA
examination.  The veteran reported constant knee pain for
which he takes 800 milligrams of Motrin three times a day
with little relief.  The veteran indicated that the pain is
aggravated with all activities and with changes in the
weather.  He indicated that he cannot squat or run, and that
he has swelling if he walks for more than half a mile.  His
knee reportedly does not lock but it does give way rarely,
causing occasional falling.  He reported that he spends his
leisure time doing housework, yard work, fishing, and raising
horses.

Upon examination, the October 1994 VA examiner noted a well-
healed, nontender 11-centimeter vertical scar.  The VA
examiner found that the veteran could extend to 10 degrees
and flex at 90 degrees of marked crepitance.  Tenderness to
palpation was noted at the medial line joint, with slight
edema of the joint without effusion or deformity.  Ligaments
were noted to be intact, and the examiner indicated that the
veteran ambulated with a slight limp and squatted with
difficulty.  The VA examiner diagnosed the veteran with a
post-operative right knee injury with degenerative changes.

VA outpatient records dated between August 1995 and April
1996 show further complaints of right knee pain.  These
reports show repeated diagnoses of degenerative joint disease
of the right knee, described as severe in March 1996, and
indicated complaints of symptoms such as swelling and pain.

Private medical reports show that the veteran was seen at the
McCain Orthopedic Clinic in Arizona in December 1995 for
evaluation of his right knee condition.  During a physical
examination, a physician noted an obviously varus knee with
probable medial osteophytes.  The physician found a well-
healed medial scar with no effusion in the knee, and noted
that x-rays revealed an "amazingly well preserved" joint
space.  The physician diagnosed the veteran with
osteoarthritis of the knee, with some varus deformity and
patellofemoral disease as well.  Because of the good
preservation of the medial joint space, the physician
recommended arthroscopic debridement, which was apparently
undertaken a short time later.

In his January 1996 substantive appeal, the veteran contended
that the RO overlooked that he had swelling and fluid in his
right knee as well as the ongoing treatment that he has been
receiving for his condition.

Following his arthroscopic debridement, the veteran was again
seen at the McCain Orthopedic Clinic in January 1996 for a
follow-up evaluation.  The physician found that overall, the
veteran appeared to be doing great, but that, as would be
expected, he still has symptoms since the surgery was for
osteoarthritis.  The physician did find that the veteran's
knee was better and that he showed no signs of effusion on
the day of the examination.

In January 1996, the veteran was also seen by Dr. M.D. for
evaluation of his knee condition.  The physician noted that
the veteran's knees continue to be fairly problematic, but
found no evidence of warmth, swelling, or redness consistent
with synovitis or limitation of his daily activities.  The
physician diagnosed the veteran with minimally symptomatic
degenerative disease involving the knees.

In April 1996, a  local hearing was held.  The veteran
testified that he is unable to enter the job market due to
his disabilities, and that he has been putting on weight due
to his inability to exercise.  He also testified that he has
great difficulty driving, and that his knee often gives out
on him.  He also indicated that he is unable to straighten
his knee, and that he is unable to push up with it all, such
as one would when squatting.

The veteran further testified that despite what the VA
examiners have said, he does often experience swelling in his
right knee, and that he often used a cane for assistance when
walking up to a few weeks prior to the hearing.

In June 1996, the veteran was provided with another VA
examination.  The VA examiner noted that the right knee was
the mirror image of the left, except for a scar on the medial
side.  The examiner noted full extension to 130 degrees,
which is equal to that found on the left side.  Ligaments
were noted to be intact and nontender to stress.  No
swelling, redness, or effusion was found.  Tenderness to
palpation all about the right knee was noted.  The VA
examiner diagnosed the veteran with degenerative arthritis of
the right knee, with chondroplasty of the patella having been
performed, and then also degenerative changes in the
patellofemoral joint.  He also diagnosed some narrowing of
the joint margin, but that this is a "wear-and-tear"
change, although more than one would expect for a 59-year-old
male.

In October 1997, another VA examination was conducted.  The
veteran reported that in 1996, he had an arthroscopic
debridement performed and was told that in the future, he
would require a "total knee done" on the right side.  He
further reported that climbing stairs or hills requires him
to place his hand on his right knee for support because it
does not bend all the way.  Physical examination of his right
knee revealed flexion contracture to 10 degrees to a flexion
capability of 110 degrees, compared to 0 to 130 degrees on
the left side.  The VA examiner indicated that the veteran
stands in 10 degrees of varus and that he prefers a flexed
knee position.  A slightly broadened 3.5-inch anteromedial
scar was noted.

The VA examiner found prominent anterior tibial tubercles,
which is suggestive of Osgood-Slaughter syndrome.
Circumferential measurements of the right calf revealed a 1/2
inch decrease in size as compared to the left calf.  The
vastus medial component was noted to appear functional.  The
VA examiner diagnosed the veteran with progressive
degenerative joint disease of the right knee, secondary to a
remote injury.

The examiner concluded that the severity of the veteran's
right knee injury is well-expressed by the veteran's
complaints of pain, muscle weakness and restriction in
activities such as sitting, stair climbing, and vehicle
operation.

Analysis

The Board notes that the veteran's service-connected internal
derangement of the right knee, with removal of meniscus and
ligamentous repair, was originally rated at 10 percent under
38 C.F.R. � 4.71a, Diagnostic Code 5159 [ cartilage,
semilunar, removal of, symptomatic].  However, in August
1995, the RO found that the veteran's service-connected
disability was more appropriately rated under Diagnostic Code
5261 [limitation of extension of the leg].

Under Diagnostic Code 5259, the symptomatic removal of
semilunar cartilage will result in a 10 percent disability
rating, the highest disability rating available under this
code.  38 C.F.R. � 4.71a, Diagnostic Code 5259.

Under Diagnostic Code 5261, a 0 percent disability rating is
warranted for limitation of extension to 5 degrees, a 10
percent disability rating is warranted for limitation of
extension to 10 degrees, and a 20 percent disability rating
is warranted for limitation of extension to 15 degrees.
38 C.F.R. � 4.71a, Diagnostic Code 5261.

As 10 percent is the highest rating available under
Diagnostic Code 5159, the Board finds that consideration of
this code is unwarranted, as it cannot afford the veteran a
higher evaluation.

Therefore, the Board will initially address the criteria
Diagnostic Code 5261, the code under which the veteran's
disability is presently assigned.  After reviewing the
evidence of the record, the Board finds that a rating in
excess of the 10 percent already assigned for the veteran's
internal derangement of the right knee is not warranted.

Although some limitation of extension has occasionally been
noted, such limitation has never been noted to be to 15
degrees, as would be necessary for a higher evaluation under
Diagnostic Code 5261.  In fact, on several occasions, both
private and VA examiners found full range of motion in the
veteran's knee.

The Board has also considered the criteria of Diagnostic Code
5260, pertaining to limitation of flexion in the leg, which
assigns a 20 percent evaluation for flexion limited to 30
degrees.  However, as noted above, both private and VA
examiners have repeatedly found almost full range of motion
in the veteran's right knee.  Although some limitation of
flexion may have been noted at times, it was never found to
be to the degree necessary to warrant a higher evaluation
under Diagnostic Code 5260.

The Board has also considered other criteria applicable to
knee disabilities.  However, there is no indication in the
record of ankylosis of the right knee or present impairment
of the tibia or fibula, as might warrant higher evaluations
under 38 C.F.R. � 4.71a, Diagnostic Codes 5256 or 5262.

The Board notes that the veteran has been diagnosed with
degenerative joint disease in the right knee.  The VA General
Counsel has held that where the medical evidence shows that
the veteran has arthritis of the knee and where the
diagnostic code applicable to his disability is not based
upon limitation of motion, a separate rating for limitation
of motion may be assigned if there is additional disability
due to limitation of motion.  VAOPGCPREC 23-97.

However, in this instance, the applicable rating criteria,
Diagnostic Code 5261, is already based upon limitation of
motion.  Further, the RO has already assigned a separate 10
percent disability evaluation under Diagnostic Code 5003 for
degenerative joint disease of the right knee.  As such,
additional consideration of the veteran's arthritis is not
warranted.

As the veteran does have scarring as a result of surgery, the
Board has considered the criteria of Diagnostic Codes 7803,
7804, and 7805.  However, repeated private and VA
examinations have shown a well-healed scar with no residual
problems.  Although some tenderness to palpation has been
noted on the medial side, this has never been attributed to
the veteran's scar.  Additionally, the scar has not been
shown to be poorly nourished, or have repeated ulceration.
Therefore, the Board finds that the criteria for a separate
evaluation under any of these rating codes have not been met.
38 C.F.R. � 4.118, Codes 7803, 7804, 7805.

In light of the veteran's complaints of pain and swelling,
the Board has also considered the criteria of 38 C.F.R.
�� 4.40, 4.45, and 4.59.  Although the Board acknowledges
that during the last VA examination, the examiner found that
the veteran does experience pain and muscle weakness, as well
as a restriction in some activities, the Board finds that the
veteran's overall disability picture does not warrant a
higher rating based on functional loss.  There is no
objective medical evidence of excessive fatigability,
atrophy, or incoordination, and only mild limitation of
motion has been found.  Therefore, the Board finds in light
of the separate 10 percent evaluations already assigned for
the veteran's internal derangement of the right knee, and
degenerative joint disease of the right knee, the veteran has
already been adequately compensated for the level of
functional loss experienced as a result of his right knee
disabilities.

Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim for an
increased evaluation for the right knee disability.  Gilbert
v. Derwinski, 1 Vet. App. 49, 53 (1990).

For the foregoing reasons, the Board concludes that the
evidentiary record does not warrant a grant of entitlement to
an evaluation in excess of 10 percent for internal
derangement of the right knee, with removal of meniscus and
ligamentous repair.  38 U.S.C.A. � 1155, 5107; 38 C.F.R.
� 4.7, 4.40, 4.45, 4.50, 4.71a, Diagnostic Codes, 5259, 5256,
5262, 5260, 5261.

ORDER

Entitlement to an evaluation in excess of 10 percent for the
residuals of a fracture of the fifth metacarpal of the right
hand with amputation, little finger (major), is denied.

Entitlement to an evaluation in excess of 10 percent for
internal derangement of the right knee, with removal of
meniscus and ligamentous repair, is denied.

	RONALD R. BOSCH
	Member, Board of Veterans' Appeals


judge_norm: TRESA M SCHLECHT

condition: arthritis

disposition: remanded

text:
Citation Nr: 9922000
Decision Date: 08/05/99    Archive Date: 08/12/99

DOCKET NO.  98-01 860A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUES

1.  Entitlement to an evaluation in excess of 30 percent for
residuals, right medial meniscectomy, with instability and
osteoarthritis.

2.  Entitlement to service connection for a left knee
disorder, claimed as secondary to service-connected
residuals, right medial meniscectomy, with instability and
osteoarthritis.

REPRESENTATION

Appellant represented by:	AMVETS

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Howard M. Scott, Associate Counsel

INTRODUCTION

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from rating decisions of the Department
of Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.  In March 1997, the RO denied entitlement to an
evaluation in excess of 30 percent for residuals, right
medial meniscectomy, with instability and osteoarthritis.  In
November 1997, the RO denied entitlement to service
connection for a left knee disorder.  The veteran, who had
active service from May 1966 to January 1970, timely appealed
those decisions to the BVA in January 1998.

The Board notes that, in his January 1998 substantive appeal,
the veteran indicated, in a box in Part 7A of the appeal
form, that he wished to appear personally at a hearing before
a member of the Board.  However, in Part 8, the veteran
specified that he was requesting "a hearing in front of the
Cleveland Hearing Officer."  The veteran was thereafter
afforded a personal hearing before the Hearing Officer at the
RO.  The veteran has not requested any further hearing, nor
has his representative indicated that the veteran wanted a
hearing before the Board.  The veteran's narrative
description of the hearing he sought was more specific, and
disclosed that the veteran wanted a hearing before the RO
rather than a Board hearing.  The veteran has been afforded
the requested hearing, and no further action is required
prior to completion of appellate review.

The claim of entitlement to service connection for a left
knee disorder is addressed in the REMAND portion of this
decision.

FINDING OF FACT

The residuals of a right medial meniscectomy, with
instability and osteoarthritis, are manifested by moderate
instability of the knee, noncompensable limitation of motion,
swelling, pain on motion and use, and X-ray evidence of
arthritis.

CONCLUSION OF LAW

The schedular criteria for an evaluation in excess of 30
percent for residuals, right medial meniscectomy, with
instability and osteoarthritis, have not been met.
38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. �� 4.40,
4.71a, Diagnostic Codes 5010, 5257 (1998).

REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter the Board finds that the veteran's
claim is well-grounded within the meaning of 38 U.S.C.A.
� 5107(a).  When a veteran is seeking an increased rating (as
opposed to entitlement to service connection), an assertion
of an increase in severity is sufficient to render the
increased rating claim well-grounded.  Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992).

Service connection for residuals of a right medial
meniscectomy and instability was granted in August 1971.  A
temporary 100 percent evaluation was granted, effective from
May to June 1971, under 38 C.F.R. � 4.30.  Thereafter, the
disability was assigned a 20 percent evaluation.  In
September 1972, the RO decreased the evaluation to 10
percent, effective December 1972.  In November 1994, the RO
assigned another temporary 100 percent evaluation, for a
period beginning when the veteran underwent arthroscopic
surgery on the right knee in October 1993, followed by a 20
percent evaluation, effective December 1993.  In addition,
the disability was recharacterized as residuals of a right
medial meniscectomy, with instability and osteoarthritis.

In January 1997, the veteran received another VA examination.
The veteran complained of constant pain and swelling of the
right knee, aggravated by prolonged standing, walking, and by
cold weather.  On occasion, the pain was sufficient to wake
him up at night.  He would periodically treat the pain with
ice.  He also complained of popping sounds in the knee.  The
veteran reported using a rigid knee brace for the past two
years.  The examiner noted that the veteran was unable to
perform a deep knee bend, range of motion was from 0 degrees
extension to 90 degrees flexion, and there was tenderness on
the anterior aspect of the knee joint.  The report stated
that there was considerable laxity of the anterior cruciate
ligament, disuse atrophy of the quadriceps, swelling on the
medial aspect of the knee, and significant crepitus and pain
on movement.  X-rays revealed mild degenerative changes in an
otherwise normal knee.  The diagnosis was post operative
right knee with arthritis.  Based on these results, the RO,
in March 1997, increased the evaluation to 30 percent,
effective January 1997.

VA treatment records from October 1994 to April 1998 noted
ongoing treatment for degenerative joint disease of the right
knee.

At his February 1998 personal hearing, the veteran testified
that he wore a brace "all the time" for his right knee,
except when he went to bed.  He stated that his knee would
give out on him if he turned suddenly, but reported that he
had never actually fallen.  His right knee would swell,
requiring him to ice it down several times a day during his
breaks at work.  He had difficulty going up and down steps.
He reported that, for two months during the previous year, he
had been placed on "light duty" at work by his doctor due
to swelling of his knee.  He indicated that his doctors had
considered giving him a total right knee replacement, but
that he was too young.  He indicated further that he was
dissatisfied with the recent VA examination, and that he was
unable to straighten out his knee.  The Hearing Officer asked
the veteran to stand and observed that, on standing, the
veteran's leg was straight.

The Board notes that review of the VA examination report does
not indicate that it was inadequate for rating purposes.  The
Board notes in particular that the VA examination report is
more favorable to the veteran's claim than the subsequent
private medical statements.

Correspondence from the veteran's private physician noted
that the veteran's right knee would intermittently give out,
and caused a dull aching pain when standing for prolonged
periods.  In addition, the veteran had swelling, occasional
night pain, and wore a knee brace.  The doctor reported that
the veteran had a ten degree varus deformity, with a varus
thrust when walking, and a severe antalgic gait.  Range of
motion of the knee was described as full, and it was stable
to lateral and posterior stress.  X-rays revealed advanced
arthritic changes with complete loss of the articular
surfaces of the joint.  The doctor concluded that the brace
was "not doing the job," and that the only surgical remedy
was a total knee replacement.

Disability evaluations are based on the comparison of
clinical findings with the relevant schedular criteria.  38
U.S.C.A. � 1155.  While a disability must be evaluated in
relation to its history, 38 C.F.R. � 4.1, it is the present
level of disability that is of primary concern.  Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).  Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise the lower rating will be assigned.  38 C.F.R. � 4.7
(1998).

Residuals of a right medial meniscectomy, with instability
and osteoarthritis, are currently evaluated under 38 C.F.R.
�4.71a, Diagnostic Codes (DC) 5010 and 5257.  Under DC 5257,
a 30 percent evaluation is the highest contemplated
evaluation for impairment of the knee, with recurrent
subluxation or lateral instability, and is warranted for
severe impairment.  A 20 percent evaluation is warranted for
moderate impairment of the knee.

While the VA examiner noted in January 1997 that there was
considerable laxity of the anterior cruciate ligament, the
veteran's private physician noted in April 1998 that the knee
was stable to anterior and posterior stress.  At his February
1998 personal hearing, the veteran testified that he had
never actually fallen because of his right knee giving way.
The Board notes in particular the veteran's testimony that he
is able to work 10-hour days, four days a week, on an
assembly line, although he required "light duty" two months
during the previous year.  The Board finds that this work
record is consistent with moderate right knee impairment, but
is not consistent with severe knee impairment.  The Board
also notes that the veteran wears a rigid, hinged brace on
the right knee.  However, in view of the fact that the
veteran has remained able to work full-time and has
maintained his ability to perform at activities of daily
living, the requirement that the veteran wear a brace is
consistent with moderate disability, but no more.  In view of
the fact that it is the present level of disability that is
of primary concern, Francisco, 7 Vet. App. at 58, the Board
finds that the preponderance of the evidence indicates that
impairment of the stability of the veteran's knee is no more
than moderate, warranting a 20 percent evaluation, but no
more, under DC 5257.

Under DC 5010, degenerative arthritis established by X-ray
will be rated on the basis of limitation of motion of the
joint involved.  In the present case, the VA examiner
indicated that the right leg had a range of motion from 0 to
90 degrees, while the veteran's private physician later
reported that the veteran had full range of motion of the
right knee.  Thus a compensable evaluation is not warranted
under either DC 5260, which provides a 10 percent evaluation
for flexion limited to 45 degrees, or under DC 5261, which
provides a 10 percent evaluation for limitation of extension
to 10 degrees.

However, under DC 5010, when limitation of motion is
otherwise noncompensable, a 10 percent evaluation is
warranted for degenerative arthritis established by
radiologic examination.  Therefore, in view of the
noncompensable limitation of motion shown in the VA
examination, and the presence of osteoarthritis, confirmed by
X-ray, and in view the provisions of 38 C.F.R. �� 4.40, 4.45,
and 4.59, and DeLuca v. Brown, 8 Vet. App. 202, 205-206
(1995), the Board finds that the evidence supports an
additional 10 percent for residuals of a right medial
meniscectomy, with instability and osteoarthritis.
The Board has considered whether an evaluation in excess of
20 percent for residuals of meniscectomy, or an evaluation in
excess of 10 percent for the disability due to
osteoarthritis, is available under any other diagnostic code
or criteria.  The Board notes that an evaluation in excess of
30 percent is warranted whether there is nonunion of the
tibia and fibular, requiring use of a brace, or where there
are severe limitations of flexion or extension, or where a
knee is ankylosed in flexion at a 10 degree angle or worse.
38 C.F.R. � 4.71a, Diagnostic Codes 5256, 5260, 5261, 5262.
However, there is no evidence of ankylosis of the knee, of
fracture with non-union of the tibia and fibula, or of severe
limitation of motion, so as to warrant an increased
evaluation for the veteran's right knee disability under any
of these criteria.

There is no evidence that the veteran has been hospitalized
for medical or surgical treatment of the right knee since
1993.  The evidence reflects that the veteran has required
light duty totaling about two months in the past year, but
there is no evidence that the veteran has been unable to
report for work as a result of service-connected right knee
disability.  The Board finds that the veteran's occasional
requirement for light work of up to two months during a
year's period is within the contemplation of a 30 percent
evaluation, and does not meet the criteria for referral for
extraschedular evaluation.  See 38 C.F.R. � 3.321(b).

The Board thus finds that, while the evidence supports a 20
percent evaluation under DC 5257 for moderate impairment of
the knee, and an additional 10 percent evaluation under DC
5010, for limitation of motion and pain, with X-ray evidence
of arthritis, the preponderance of the evidence is against a
higher evaluation.  As the evidence is not in equipoise to
warrant either an evaluation in excess of 20 percent for
right knee instability or in excess of 10 percent for
osteoarthritis of the right knee on radiologic examination,
the provisions of 38 U.S.C.A. � 5107(b) regarding reasonable
doubt are not applicable.  Accordingly, the veteran's claim
of entitlement to an evaluation in excess of 30 percent for
residuals, right medial meniscectomy, with instability and
osteoarthritis, is denied.

ORDER

Entitlement to an evaluation in excess of 30 percent for
residuals, right medial meniscectomy, with instability and
osteoarthritis, is denied.

REMAND

The veteran contends that he has a left knee disorder that is
secondary to his service-connected residuals, right medial
meniscectomy, with instability and osteoarthritis.  While an
October 1997 VA examination report indicated that no
abnormality of the left knee could be diagnosed, mild
degenerative changes of the left knee were disclosed on
radiologic examination.  VA treatment records, specifically
an entry dated in November 1997, disclose that the veteran
complained of left knee pain secondary to favoring his right
knee.  Correspondence dated in April and May 1998 from the
veteran's private physicians indicated that the veteran had
pain in the left knee and that it would be "reasonable to
assume that" this is due to the veteran placing more strain
on the left knee due to his right knee disability.  In
addition, medical bills from private medical facilities
contain notations, handwritten in ink, that indicate
treatment in February and March 1998 for left knee medial
meniscus tear and left knee strain.

While the Board recognizes that the veteran has not been
given a clear diagnosis of a left knee disorder, in view of
the comments from both VA and private physicians that the
veteran has left knee pain secondary to his service-connected
right knee disability, the Board finds that the veteran's
claim of entitlement to service connection for a left knee
disorder is "well grounded" within the meaning of 38
U.S.C.A. � 5107(a) (West 1991).  See Murphy v. Derwinski 1
Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App.
49, 55 (1990).  That is, the Board finds that the veteran has
presented a claim which is not implausible when his
contentions and the evidence of record are viewed in the
light most favorable to that claim.

Because of the conflicting medical evidence relating to the
existence of a left knee disorder, the Board believes that an
additional VA examination would be helpful in resolving this
matter.  Therefore, this case is REMANDED for the following
action:

1.  The veteran should be afforded an
examination by an appropriate specialist
to determine the nature and etiology of
any left knee disorder that may be
present.  The examiner is requested to
review all the medical evidence in the
claims folder, with specific emphasis on
the VA treatment records, the
correspondence from the veteran's private
physicians, and the private billing
records.  The examiner is further
requested to state whether, based on an
examination of the veteran's left knee,
there has been a medial meniscus tear of
the left knee at any time since the
beginning of 1998.  If the examiner finds
that the veteran has any left knee
disorder for which a diagnosis can be
provided, the examiner is next requested
to offer an opinion on whether it is as
likely as not that any such current left
knee disorder is related to service, or
to the veteran's service-connected right
knee disability.  Since it is important
"that each disability be viewed in
relation to its history[,]" 38 C.F.R.
� 4.1 (1998), copies of all pertinent
medical records in the veteran's claims
file or, in the alternative, the claims
file, must be made available to the
examiner for review

2.  Following completion of the above
action, the claim of entitlement to
service connection for a left knee
disorder should be readjudicated on the
merits.  If the benefit sought is not
granted, the appellant and his
representative should be furnished a
Supplemental Statement of the Case, and
be afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.

The purpose of this REMAND is to obtain additional
development.  The Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable, at
this time.  The appellant is free to submit any additional
evidence he desires to have considered in connection with his
current appeal.  No action is required of the appellant until
he is notified.

	TRESA M. SCHLECHT
	Acting Member, Board of Veterans' Appeals


judge_norm: MARY GALLAGHER

text:
Citation Nr: 9924000
Decision Date: 08/24/99    Archive Date: 08/27/99

DOCKET NO.  98-02 455	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama

THE ISSUE

Entitlement to service connection for hearing loss in the
right ear.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L.J. Bakke, Associate Counsel

INTRODUCTION

The veteran served on active duty from March 1946 to November
1946, from January 1951 to January 1954, and from January
1955 to June 1971.  This appeal arises before the Board of
Veterans' Appeals (Board) from a rating decision in which
service connection for hearing loss in the left ear was
granted but in which service connection for that in the
right, denied.

In a statement received at his hearing in April 1998, the
veteran claimed entitlement to service connection for
tinnitus.  This matter is referred to the RO for appropriate
action.

FINDING OF FACT

The record does not contain competent evidence of a nexus
between a current right ear hearing loss disability and
injury or disease during the veteran's active service.

CONCLUSION OF LAW

The claim for service connection for right ear hearing loss
is not well-grounded.  38 U.S.C.A. �� 1110, 5107 (West 1991);
38 C.F.R. �� 3.303, 3.385 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran must submit evidence that the claim is well
grounded.  38 U.S.C.A. � 5107(a) (West 1991).  A well-
grounded claim is a plausible claim, one which is meritorious
on its own or capable of substantiation.  Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990).  A well-grounded claim
requires more than mere allegations that the veteran's
service, or an incident which occurred therein, resulted in
illness, injury, or death.  The veteran must submit
supporting evidence that would justify the belief that the
claim is plausible.  See Tirpak v. Derwinski, 2 Vet. App. 609
(1992); Grivois v. Brown, 6 Vet. App. 136 (1994).
Evidentiary assertions by the claimant must be accepted as
true for the purpose of determining if a claim is well-
grounded, except when the assertions are inherently
incredible or beyond the competence of the person making
them.  King v. Brown, 5 Vet. App. 19 (1993).

Service connection may be established for disability
resulting from personal injury or disease incurred in or
aggravated by service.  38 U.S.C.A. � 1110, 1131 (West 1991).
In the absence of chronicity at onset, a grant of service
connection requires evidence of continuity of symptomatology
demonstrating that a current disability was incurred in
service.  38 C.F.R. � 3.303(b) (1998).  Regulations also
provide that service connection may be established where all
the evidence of record, including that pertinent to service,
demonstrates that the veteran's currently disability was
incurred in service.  38 C.F.R. � 3.303(d) (1998).

The three elements of a "well grounded" claim for service
connection are (1) evidence of a current disability as
provided by a medical diagnosis; (2) evidence of incurrence
or aggravation of a disease or injury in service as provided
by either lay or medical evidence, as the situation dictates;
and, (3) a nexus, or link, between the inservice disease or
injury and the current disability, as provided by competent
medical evidence.  See Caluza v. Brown, 7 Vet. App. 498, 506
(1994), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table).

Where a veteran was engaged in combat with the enemy during a
period of war, the VA shall accept as sufficient proof of
service-connection of any disease or injury alleged to have
been incurred in or aggravated by said service such
satisfactory lay or other evidence of service incurrence or
aggravation of such injury or disease, if consistent with the
circumstances, conditions, or hardships of such service,
notwithstanding the fact that there is no official record of
such incurrence or aggravation in such service, and, to that
end, shall resolve every reasonable doubt in favor of the
veteran.  38 U.S.C.A. � 1154(b) (West 1991).  Nonetheless, a
combat veteran is still required to submit competent evidence
of a current disability, and of a nexus between that
disability and an incident of service.  Arms v. West, 12 Vet.
App. 188, 194-5 (1999); see also Wade v. West, 11 Vet. App.
302, 305 (1998).

VA regulations provide that impaired hearing will be
considered a disability when the auditory threshold in any of
the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of those same frequencies 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 (1998).
Service connection for hearing loss may be established where
these hearing loss thresholds are currently met and the
evidence of record, including that pertinent to service,
establishes that a current hearing loss was incurred in
service.  See Ledford v. Derwinski, 3 Vet. App. 87, 87
(1992); 38 C.F.R. � 3.303(d).

The regulations provide that certain chronic diseases will be
considered to have been incurred in service if manifested to
a degree if 10 percent or more within one year from the date
of separation from active service, where the veteran has
served for 90 days or more during a period of war, or after
December 31, 1946, even though there is no evidence the
disease existed during service.  38 C.F.R. � 3.307 (1998).
Organic diseases of the nervous system-within which
classification sensorineural hearing loss falls-are of the
chronic diseases for which the presumption is granted.
38 C.F.R. � 3.309(a) (1998).

The veteran avers that is right ear hearing loss is the
result of his exposure to acoustic trauma during his active
service.  Specifically, he avers that, while assigned in
vehicle maintenance to an artillery unit on the front lines
in Korea in 1951, he was exposed to the sounds of guns firing
and detonations, and to concussions so fierce candles were
knocked out and tents, down.  To this end, he has proffered
medical evidence establishing that he now suffers from
hearing loss in his right ear.  A May 1997 VA examination
report demonstrates that the veteran does exhibit hearing
loss in his right ear as defined by 38 C.F.R. � 3.385.  In
addition, his assertion that he was exposed to acoustic
trauma while on active service is sufficient evidence of in-
service injury for the purpose of well-grounding his claim.
However, he has not proffered any competent medical evidence
showing a causal relationship between this hearing loss and
any inservice right ear injury or disease.

With the exception of a clinical record dated in 1953 and
showing admission and treatment for strained muscles
following a fall, the veteran's service medical records for
the period of active duty dating January 1951 to January 1954
are not of record.  The National Personnel Records Center
(NPRC) has identified that these records were destroyed in
the 1973 fire in St. Louis.  Further research, including
requesting records of the Surgeon General's Office, has been
accomplished, with some success.  The veteran's reports of
physical examination and entrance to and discharge from
active service, dated in January 1951 and January 1954,
respectively, are of record.  However, in the former, the
examiner did not record results of hearing tests and the
latter reveals no abnormality.  Rather, hearing is shown to
have measured 15 of 15, whispered voice, in the right ear at
the veteran's discharge in January 1954.  Furthermore, these
reports reveal no complaints or findings of any right ear
injury, disease, defect, abnormality or other condition.  In
fact, in January 1954, the examiner specifically noted that
the veteran had experienced no serious illness or injury
during this period of active service.

Other results of hearing or audiometric tests conducted
throughout the veteran's active service are as follows:

WV
Hertz
date

500
1000
2000
3000
4000
3/46
20/2
0

11/4
6
15/1
5

1/55
15/1
5

5/57
15/1
5

5/63

10
10
10
15
25
10/6
4

10
10
15
20
30
7/66

0
0
0
15
15
1/71

5
10
15
35
35

The Board notes that the results of audiometric testing for
the right ear reflected in the veteran's report of physical
examination at discharge, in January 1971-unlike that of the
left ear-does not reflect establish hearing loss as defined
by 38 C.F.R. � 3.385.

Of the remainder of his service medical records, an entry
reflects complaints of vertigo in November 1957, which the
examiner diagnosed as viral labyrinthitis.  Nothing further
follows.  Rather, the extant service medical records,
including reports of medical history and examination
throughout his active service, are devoid of any complaints
of or treatment for right ear injury, disease, hearing loss;
and are devoid of any findings of right ear abnormalities,
defects, diagnoses, or any other problem.

The veteran has testified, in an April 1998 hearing before a
hearing officer sitting at the RO, that he first noticed
difficulty hearing in the early 1970s, possibly within the
presumptive one-year period.  The first diagnosis of hearing
loss in the right ear, however, is not until May 1997-nearly
26 years after the veteran's retirement from active service.
Furthermore, the veteran testified that it was not until 1989
or 1990-18 or 19 years, respectively, after his discharge
from active service and well-beyond the one-year presumptive
period-that he received treatment, a hearing aid, for his
right ear disability.  In a statement submitted to the RO in
May 1998, he noted that he received his first hearing test
and was first advised of his hearing loss problem in 1973-74,
which is still outside the one-year presumptive period.
Moreover, in this statement he further indicated that he was
employed in occupations in which he was exposed to loud
noises after his retirement from the military.  He stated
that he had worked for a company that made files, in which
his duties required that he work around loud noise-albeit
with ear protection.  Subsequently, he worked for the
railroad, which also required that he work around loud
noises-also with ear protection.   The 1994 VA examination
report, which includes a history as given by the veteran of
14 years' employment with the railroad, corroborates this
employment history.

There is no other medical evidence or medical expert opinion
as to the etiology of the veteran's current right ear hearing
loss.  Other medical records, including private treatment
records dated from 1990 to 1994 and an October 1994 VA
examination report, are of record but are silent as to any
complaints or findings of any right ear injury, disease,
hearing loss, or any other problem.  Furthermore, the veteran
has not submitted lay testimony or other evidence
demonstrating a continuity of symptomatology.

The veteran has presented his own statements regarding the
cause of his right ear hearing loss.  However, the record
does not show that the veteran is a medical professional,
with the training and expertise to provide clinical findings
regarding the nature and extent of his right ear hearing
loss, or its etiologic relationship to service.
Consequently, his statements are credible concerning his
subjective complaints and his history; but they do not
constitute competent medical evidence for the purposes of
showing a nexus between current complaints and service.  See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v.
Brown, 5 Vet. App. 91 (1993).

As the veteran has presented no evidence, other than his own
allegations, to establish a nexus between his current right
ear hearing loss and his inservice exposure to acoustic
trauma, his claim for service connection for right ear
hearing loss is not well grounded.  38 U.S.C.A. � 5107(a);
Caluza, supra; see also Arms, supra, and Wade, supra.

Where a claim is not well grounded, VA does not have a
statutory duty to assist a claimant in developing facts
pertinent to the claim.  Nevertheless, VA may be obligated
under 38 U.S.C.A. � 5013(a) to advise the claimant of
evidence needed to complete his application.  This obligation
depends on the particular facts of the case and the extent to
which VA has advised the claimant of the evidence necessary
to be submitted with a VA benefits claim.  Robinette v.
Brown, 8 Vet. App. 69, 77-80 (1995).  Here, the RO fulfilled
its obligation in its statement of the case and supplemental
statement of the case, which informed the veteran of the
reasons his claim had been denied.  Also, by this decision,
the Board informs the veteran of the type of evidence needed
to make his claim well grounded.

The appellant's representative has argued that VA has
expanded its duty to assist the claimant by provisions in its
manual M21-1, and that the Board should determine whether the
RO has followed the guidelines therein and remand the appeal
for further development if the RO has not followed such
guidelines.  In Morton v. West, No. 96-1517 (U.S. Vet. App.
July 14, 1999), the United States Court of Appeals for
Veterans Claims rejected the argument that 38 C.F.R.
�� 3.103(a), 3.159(a); VA Adjudication Procedure Manual M21-
1, Part III, para. 1.03(a) and Part IV, para. 2.10(f); and
policies set forth in other VA documents require VA to assist
the claimant in developing facts pertinent to the claim even
though a well-grounded claim had not yet been submitted.  The
Court concluded that any perceived or actual failure by the
Secretary to render assistance in the absence of a well-
grounded claim cannot be legal error.  Consequently, the
Board sees no basis upon which to comply with the
representative's request in this regard.

ORDER

The claim for service connection for right ear hearing loss
is denied.

	MARY GALLAGHER
	Member, Board of Veterans' Appeals


judge_norm: L W TOBIN

text:
Citation Nr: 9925000
Decision Date: 08/31/99    Archive Date: 09/08/99

DOCKET NO.  97-07 947	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manchester, New Hampshire

THE ISSUE

Whether the veteran is entitled to fee basis outpatient
medical care.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. Parakkal, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1942 to
November 1946, November 1950 to November 1951, April 1952 to
April 1954, and May 1954 to January 1962.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an October 1996 decision of the Medical
Administrative Service (MAS) of the VA Medical Center (VAMC)
in Manchester, New Hampshire, which terminated the veteran's
entitlement to receive private outpatient medical care at VA
expense on a fee basis; he appeals for restoration of fee
basis status.  In October 1998, the Board remanded the case
to the RO for further development.  The case was forwarded to
the Board in January 1999.

It is pointed out that the veteran's appeal previously
included the issue of authorization for private whirlpool
therapy at VA expense, but since the benefit was later
granted by the VAMC, it is no longer on appeal.

FINDINGS OF FACT

1.  The veteran has a permanent and total compensation rating
based on individual unemployability; his service-connected
disorders include residuals of multiple burns and
degenerative arthritis of both knees.

2.  The VA outpatient clinic in Tilton, New Hampshire is the
VA medical facility closest to the veteran's residence; such
VA outpatient clinic is geographically accessible to the
veteran, and such VA outpatient clinic is capable of
providing his needed medical services.

CONCLUSION OF LAW

The veteran does not meet the eligibility requirements for
fee basis outpatient medical care.  38 U.S.C.A. � 1703 (West
1991); 38 C.F.R. � 17.52 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

The veteran served on active duty from October 1942 to
November 1946, November 1950 to November 1951, April 1952 to
April 1954, and May 1954 to January 1962.  He is in receipt
of a permanent and total compensation rating based on
individual unemployability, and is service-connected for
residuals of burns and degenerative arthritis of the knees.

In the 1980s, the VA authorized fee basis outpatient medical
care for the veteran.

In an April 1996 statement, Frank J. Kropp, M.D., related
that the veteran had severe arthritis of the knees and
contractures of the legs (due to burns incurred in service).
Dr. Kropp noted that the veteran lived in Bristol [New
Hampshire] and that it was difficult for him to travel back
and forth to Manchester, New Hampshire for scheduled
appointments [at the VA].  Dr. Kropp also pointed out that it
was more convenient for the veteran to receive care from him
in Franklin, New Hampshire, when necessary.  The veteran was
noted as making monthly visits to Dr. Kropp.

In a June 1996 statement, Davis W. Clark, M.D., indicated
that the veteran had been under his care for treatment of
osteoarthritis of the knees.  Dr. Clark noted that whirlpool
treatments were being used primarily for the veteran's skin
grafts but were also quite beneficial for his knees, and
should be continued.  (Dr. Clark submitted an identical
statement in January 1997.)

A July 1996 VA physical therapy evaluation (conducted by Tom
Arndt) reflects that the veteran reported he drove his own
car.  He also reported having visual deficits and wondered
how much longer he could drive.  It was also noted that the
veteran lived with his wife.  He reported he went to Margate
(a private facility) for whirlpool treatment on a daily basis
and that this was how he spent most of his day.

A September 1996 private examination report (from the office
of R. Huntington Breed II, M.D.) reflects the opinion that
the veteran had done an extremely good job of taking care of
his injuries.  It was recommended that he continue using his
skin medication.  Dr. Breed opined that, to the degree that
the whirlpool baths had been able to maintain his medical
situation, it was probably reasonable to continue using such.
It was also pointed out that the veteran should avoid
prolonged standing in order to protect his knees.

By an October 1996 letter, the VA informed the veteran that
his fee basis outpatient medical care was being terminated,
effective November 30, 1996.  It was noted that the
termination was based on the presence, in the veteran's area,
of a VA Medical Center (located in Manchester, New Hampshire)
and a new VA satellite clinic (located in the New Hampshire
Veterans Home in Tilton), which were capable of caring for
the veteran's disabilities.

Statements submitted by the veteran, in 1997 and thereafter,
reflect that he had been issued a fee basis card in the past
and had used it judiciously.  Since the fee basis card was
revoked, he related, he had attempted to receive treatment at
the VA clinic in Tilton but was either refused care or found
the building closed.  He pointed out that the VAMC
Manchester, New Hampshire was a 100 mile round trip from his
home.  He said he continued to see his private physician and
paid for the treatment himself.

Frank J. Kropp, M.D., in a January 1997 statement, noted that
the veteran had been under his care since 1962.  Dr. Kropp
noted that the veteran had both knees surgically replaced and
had received extensive skin grafts.  It as also noted that he
had a heart condition.  It was opined that he should continue
to receive whirlpool therapy indefinitely.

The veteran provided testimony at a March 1997 RO hearing.
In attendance at the hearing were Barbara Mulroy (Chief of
Fee Basis Section, Medical Administration), Tom Arndt (Chief
Physical Therapist, Rehabilitation Medicine), Dr. Michael
Mayo-Smith (Associate Chief of Staff, Ambulatory Care
Service), the veteran's representative, and the veteran.  The
veteran's representative noted that it was a 100 mile round
trip from the veteran's home to the VAMC in Manchester, New
Hampshire.  It was noted that the veteran's advanced age and
his severe service-connected injuries, including residuals of
burns, made it difficult for him to travel to the VAMC for
treatment.  The veteran said he had been keeping his skin
grafts moist through use of various medications (including
creams) and through whirlpool therapy.  He said he was
receiving whirlpool treatment at the Margate (a private
facility).  He said that when he underwent a fee basis
evaluation in July 1996 (by a physical therapist) he was not
afforded an adequate examination.  He related that the
examiner was only interested in examining his knees, not his
skin condition.  He said he had previously driven himself to
the VA clinic in Tilton, by car, and that such was about 16
or 17 minute drive from his home.  Once when he was at the
Tilton VA facility, he said, the wait was so long he left; he
also said he did not have a scheduled appointment that day.
It was noted that the Tilton clinic only accepted scheduled
appointments and did not provide whirlpool therapy.  The
veteran indicated he would agree to receive treatment at the
clinic in Tilton if it provided the treatment he needed.  It
was noted that the Tilton VA clinic was not farther from his
home than his private physician's office.

In April 1997, the veteran underwent a VA examination by
William Johnson, M.D., Acting Chief, Surgical Services.  Dr.
Johnson noted that the veteran had bilateral knee
replacements and right and left leg burns with well healed
skin grafting.  It was noted that the aforementioned
disorders caused him discomfort, which was improved by daily
whirlpool treatment.  It was recommended that whirlpool
treatment at the local health spa at VA expense be
authorized.

In November 1998, the veteran was examined by Michael Mayo-
Smith, M.D., Associate Chief of Staff/Ambulatory Care at the
Tilton VA outpatient clinic.  It was noted that when the
Tilton VA outpatient clinic was opened, the veteran's fee
basis authorization was revoked.  It was noted, however, that
he did have fee basis authorization for whirlpool treatment
for his skin condition at Margate Health spa.  It was noted
that Margate was farther from the veteran's home than the
Tilton VA outpatient clinic.  It was also noted that the
veteran continued to receive routine outpatient care from Dr.
Kropp, a private practitioner, whose office was in Franklin,
New Hampshire.  The veteran's medical problems were listed
as:  coronary artery disease (which was treated with
aspirin); an irregular heartbeat (which was present for many
years, not well defined, and stable on medication);
osteoarthritis (which was not treated with medication); and
residuals of burns (which was well controlled with the
current treatment regimen of creams and whirlpool baths).  It
was concluded that the veteran needed regularly scheduled,
routine follow-up treatment with a primary care physician
with training in family practice or internal medicine.  It
was noted that the veteran needed to be seen 2 to 4 times per
year, and 1 to 2 times per year to undergo routine blood
work.  It was noted that the VA clinic in Tilton certainly
had the capability of providing the veteran's care.  It was
also noted that the veteran's fee basis physician, Dr. Kropp,
was a general practitioner whose office was only a couple of
miles from the VA clinic in Tilton.  It was also noted that
Dr. Kropp provided no greater level of care in comparison to
the Tilton clinic.  It was also noted that the veteran
benefited from regular whirlpool baths and that such a
service was not available at the VA clinic in Tilton.  (It is
pointed out that the veteran does have authorization for
private whirlpool therapy at VA expense.)

II.  Legal Analysis

When VA facilities are not capable of furnishing economical
hospital care or medical services because of geographic
inaccessibility or are not capable of furnishing care or
services required, the VA may contract with non-VA facilities
for non-VA care (including private outpatient treatment at VA
expense on a fee basis) of certain categories of veterans (a
veteran needing hospital or outpatient treatment for a
service-connected disability, a veteran needing hospital or
outpatient treatment for any disability if he has a permanent
and total compensation rating for service-connected
disability, a veteran needing outpatient treatment for any
disability if he has a service-connected disability rated at
least 50 percent, etc.).  38 U.S.C.A. � 1703(a) (West 1991);
38 C.F.R. � 17.52 (1998).

In Meakin v. West, 11 Vet. App. 183 (1998), the U.S. Court of
Veterans Appeals (which has recently been renamed the U.S.
Court of Appeals for Veterans Claims) (Court) held that in
determining whether a claimant would be entitled to fee basis
outpatient medical care as provided by 38 U.S.C.A. � 1703(a),
it must be established not only that the applicant is a
veteran and that he seeks treatment for a service-connected
disability [or falls within another category such as a
veteran with a permanent and total compensation rating or a
compensation rating of at least 50 percent and who is seeking
outpatient care for any disability], but also that VA
facilities are either (1) geographically inaccessible, or (2)
not capable of providing the care or services that the
veteran requires.  The Court held that the Board has
jurisdiction to review the questions of geographic
inaccessibility and of capability of the VAMC (or other VA
health care facility) of treating the veteran, as these
questions pertain to basic eligibility for fee basis care.
[The Court left unanswered the ultimate question of whether a
decision to actually authorize fee basis care, of even a
basically eligible veteran, was a wholly discretionary
decision of a VA medical facility, and the Board need not
address that issue in the instant case.]

As an initial matter, it is noted that the veteran is
service-connected for degenerative arthritis of the knees and
for residuals of burns.  He has a permanent and total
compensation raring based on individual unemployability.  He
has indicated he wants a fee basis card so that he can
receive private treatment for his service-connected
disorders.  The VAMC has already authorized fee basis private
whirlpool therapy, and thus the present appeal only involves
entitlement to other fee basis treatment.

As noted, one of the eligibility requirements for fee basis
outpatient medical care is geographic inaccessibility of a VA
medical facility.  The Board acknowledges that it may be
difficult for the veteran to travel 50 miles from his home to
the closest VAMC, in Manchester, New Hampshire; however, he
need not do so.  There is a closer alternative, namely the
recently opened VA outpatient clinic in Tilton, New
Hampshire.  According to the veteran, the VA facility in
Tilton is only a 16 to 17 minute car drive from his home; and
he has indicated that he is able to drive a car.  Evidence on
file shows that the Tilton VA clinic is only a few miles from
his private physician's office, and thus the VA clinic is
just about as geographically accessible to the veteran as
private care.  It is notable that the Tilton VA facility is
even closer to his home than the Margate health spa where he
receives fee basis whirlpool treatment approximately four
times per week.  (Significantly, a 1998 examination report
reflects that the veteran's condition requires that he only
be seen at the Tilton VA outpatient clinic approximately 2 to
4 times per year.)  The file shows no circumstances
(restriction to the immediate vicinity of the home due to
health reasons, a remote residence in which a VA facility is
not accessible by private or public transportation, etc.)
which would make the VA outpatient clinic in Tilton
geographically inaccessible to the veteran.  Based on all the
evidence, the Board finds that the VA facility in Tilton is
geographically accessible to the veteran.

The next fee basis eligibility question to be answered is
whether the VA outpatient clinic in Tilton has the capability
of providing the medical care which the veteran requires.
The capability element pertains to a VA facility's ability to
furnish a previously determined course of treatment.  Meakin,
supra.  It is noted that the  veteran underwent a VA fee
basis evaluation in November 1998 by Dr. Michael Mayo-Smith,
Associate Chief of Staff/Ambulatory Care at the Tilton VA.
Dr. Mayo-Smith noted that the veteran's treatment needs could
be met and provided by the VA outpatient clinic in Tilton.
It was pointed out that in comparison to VA treatment, the
veteran's own private practitioner did not provide the
veteran with a greater level of care.  All indications are
that the VA clinic in Tilton is staffed and equipped to
provide all treatment which has been determined to be
required for the veteran's health problems (except for
whirlpool therapy, for which fee basis care has been
approved); and there is no evidence to the contrary.  Based
on all the evidence, the Board finds that the VA outpatient
clinic in Tilton, New Hampshire is capable of providing the
medical care which the veteran requires.

In conclusion, the weight of the evidence demonstrates that
the veteran does not satisfy the fee basis eligibility
requirements concerning geographic accessibility and
capability of the VA facility.  As the preponderance of the
evidence is against the claim, the benefit of the doubt
doctrine is not applicable, and the claim for fee basis
outpatient treatment must be denied.  38 U.S.C.A. � 5107(b)
(West 1991); Gilbert v. Derwinski, 1 Vet. App 49 (1990).

ORDER

Entitlement to fee basis outpatient medical care is denied.

	L.W. TOBIN
	Member, Board of Veterans' Appeals