Citation Nr: 0001031 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 94-05 568A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right ankle sprain. 4. Entitlement to service connection for a left ankle disorder. 5. Entitlement to a compensable disability rating for right knee chondromalacia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from June 1976 to November 1982 and from November 1985 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The case returns to the Board following a remand to the RO in January 1999. The issue of entitlement to service connection for a right shoulder disorder was favorable resolved by the RO in an August 1999 rating decision and is therefore not currently before the Board. The issue of entitlement to a compensable disability rating for right knee chondromalacia is discussed in the REMAND portion of the decision, below. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between the veteran's alleged right hip disorder and his active service. 2. There is no competent medical evidence of a nexus between the veteran's alleged left knee disorder and his active service. 3. There is no competent medical evidence of a nexus between the veteran's alleged right ankle disorder and his active service. 4. There is no competent medical evidence of a nexus between the veteran's alleged left ankle disorder and his active service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a right hip disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 2. The claim of entitlement to service connection for a left knee disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 3. The claim of entitlement to service connection for a right ankle sprain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 4. The claim of entitlement to service connection for a left ankle disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495. For the showing of 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." 38 C.F.R. § 3.303(b). If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. at 496-97. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Id. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). A disability is service connected if it is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). In addition, secondary service connection may also be established when there is aggravation of a veteran's non-service connected condition that is proximately due to or the result of a service-connected condition. Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Secondary service connection claims must also be well grounded. 38 U.S.C.A. § 5107(a); Wallin v. West, 11 Vet. App. 509, 512 (1998); Locher v. Brown, 9 Vet. App. 535, 538 (1996); Jones v. Brown, 7 Vet. App. 134, 136-38 (1994). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). VA's duty to assist a veteran in developing facts pertinent to his claim is not triggered until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). Reviewing the claims folder, the Board finds that each of the veteran's service connection claims is not well grounded. The first requirement of any well grounded claim is medical evidence of a currently-diagnosed disability. Epps, 126 F.3d at 1468; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, service medical records show include brief mention of treatment for acute problems with the right hip, and left and right ankles, there is no competent medical evidence of any current right hip disorder, a right ankle disorder, or a left ankle disorder. With respect to the alleged left knee disorder, the Board acknowledges that service medical records show complaints of left knee pain in the months before the veteran's separation from service, as well as the March 1992 Physical Evaluation Board report indicating that the veteran was unfit for duty due to bilateral patellofemoral stress syndrome. However, the reports of VA examinations in August 1992 and April 1999 fail to reveal any diagnosis or objective findings of a left knee disorder. Absent medical evidence of a current disability, the claim is not well grounded. Epps, 126 F.3d at 1468; Brammer, 3 Vet. App. at 225. Moreover, the veteran's claims are not well grounded because where, as here, there is no medical evidence of a current disability, there necessarily can be no competent medical evidence of a nexus between the disability and service. Epps, 126 F.3d at 1468. The Board emphasizes that, although the veteran is competent as a lay person to describe his symptoms, he is not competent to offer an opinion on a matter that requires medical knowledge, such as a diagnosis or determination of etiology. Voerth v. West, 13 Vet. App. 117 (1999); Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. The Board notes that, during the August 1992 VA examination, the veteran related that he started having left knee pain as a result of favoring his right knee, which is currently service-connected. Again, the examination report shows no diagnosis of a left knee disability. Even assuming that the examiner found a left knee disability, the claim would still not be well grounded. Medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In addition, during the March 1995 hearing, the veteran testified that he was told in service that he developed a left knee disorder due to favoring the right knee. This evidence would also be insufficient to establish a well grounded claim. "[T]he connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette, 8 Vet. App. at 77. Finally, the Board finds that, to the extent the veteran asserts continuity of left knee symptoms following service, the record would still not support a conclusion that the claim is well grounded. Application of 38 C.F.R. § 3.303(b) does not relieve a veteran of his burden to providing a medical nexus. That is, until a veteran "presents competent medical evidence to provide a relationship between his current disability and either an in-service injury or his continuous symptomatology, his claim cannot be considered well grounded." Voerth, supra. Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for a right hip disorder, a left knee disorder, or a disorder of the right and left ankle. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). If the veteran wishes to complete his application for service connection for the alleged disorders, he should produce competent medical evidence showing that there is a current disability of each respective joint that is in some way related to service or to an already service-connected disability. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. Finally, the Board acknowledges that the RO failed to comply with the first instruction set forth in the January 1999 remand, verification of all the veteran's service. However, such information is not critical to the Board's determination that these claims are not well grounded and no prejudice runs to the veteran by failing to remand the case yet again for compliance with the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (citing 38 U.S.C.A. § 7261(b)) ("Court shall take due account of the rule of prejudicial error"). ORDER Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right ankle sprain is denied. Entitlement to service connection for a left ankle disorder denied. REMAND In the January 1999 remand, the Board found that a new VA orthopedic examination was in order before the veteran's service-connected right knee chondromalacia could be properly evaluated. The remand instructions specified that the examination should include evaluation of functional loss pursuant to 38 C.F.R. § 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A review of the April 1999 and July 1999 VA orthopedic examinations fails to reveal any such evaluation of functional loss. If an examination report does not contain sufficient detail, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. The Board is prohibited from relying on its own unsubstantiated medical judgment in the resolution of claims. See Crowe v. Brown, 7 Vet. App. 238 (1995); Austin v. Brown, 6 Vet. App. 547 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Moreover, failure of the Board to insure compliance with its remand instructions constitutes error. Stegall, 11 Vet. App. at 271. In addition, the Board observes that this appeal stems from the original disability rating initially assigned by the RO. In such circumstances, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). When readjudicating the veteran's claim, the RO should consider staged ratings to the extent indicated by the evidence of record. Finally, the Board notes that the January 1999 remand instructed the RO to verify the veteran's periods of naval service, specifically any service from November 1982 to November 1985. There is no indication that the RO in fact complied with this instruction. The veteran's periods of service should be verified to ensure completeness of the record. Accordingly, the issue is REMANDED to the RO for the following action: 1. The RO shoulder attempt to verify, through official channels, the veteran's periods of naval service, specifically any service from November 1982 to November 1985. 2. The RO should afford the veteran a VA orthopedic examination, to include all indicated tests and studies deemed necessary by the examiner. Evaluation of such studies by the examiner should be included in the examination report. The claims folder must be made available to the examiner for review prior to the examination. The examiner is asked to identify and describe any current right knee symptomatology, including any functional loss associated with the right knee due to more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. If there is no evidence of any of the above factors on examination, the examiner should so state. The examiner should also inquire as to whether the veteran experiences flare-ups. If so, the examiner should describe, to the extent possible, any additional functional loss or limitation of motion during such flare-ups. 3. The veteran is hereby informed that failure to report for a scheduled VA examination without good cause shown may result in adverse consequences for his claim. 4. After completing any necessary development in addition to that specified above, the RO should readjudicate the veteran's claim of entitlement to a compensable disability rating for right knee chondromalacia, considering all applicable statutes, regulations, and case law. If the disposition remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals