Citation Nr: 0001739 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 94-08 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right hand disability. 2. Entitlement to service connection for a scar of the right ankle. 3. Entitlement to service connection for thrombophlebitis of the right ankle. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from June 1940 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In July 1946, the RO in Minneapolis, Minnesota, denied service connection for an injury of the right hand. The veteran was notified of the decision and his appellate rights, but he did not file a timely appeal. In a January 1996 decision, the Board determined that the veteran failed to submit new and material evidence to reopen the claim of entitlement to service connection for a right hand injury. In addition, the Board found that the veteran's claim of entitlement to service connection for a right ankle disability was not well grounded. The veteran appealed to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"). In an October 1997 memorandum decision, the Court determined that new and material evidence had been submitted and reopened the claim of entitlement to service connection for a right hand injury. The Court also found that the veteran's claim of entitlement to service connection for a right ankle scar was well grounded. Further the Court found that the issue of entitlement to service connection for thrombophlebitis of the right leg must be remanded. The Court held that pursuant to its holding in Robinette v. Brown, 8 Vet. App. 69 (1995), the veteran's testimony that most of the physicians treating him for varicosity agreed that the trauma from service could have lead to varicosity created an obligation on the part of VA, under 38 U.S.C.A. § 5103(a) (West 1991), to notify the appellant of "the evidence necessary to complete the application." 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. 79-80. The veteran's case was remanded in April 1998 and is again before the Board for appellate review. FINDINGS OF FACT 1. Resolving reasonable doubt in the veteran's favor, residuals of a right thumb laceration, and a residual right ankle scar are related to his military service. 2. The claim of entitlement to service connection for thrombophlebitis of the right ankle is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the veteran's favor, residuals of a right thumb laceration, and a residual right ankle scar were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim of entitlement to service connection for thrombophlebitis of the right ankle is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The veteran served on active duty from June 1940 to June 1946. A review of his service medical records (SMRs) is negative for any reference of an injury or laceration of the right hand, to include the thumb, or a right ankle injury. The veteran's June 1946 separation physical examination is specifically negative for any reference to a right hand or right ankle injury. The SMRs document the veteran's transferring between his several units of assignment during the 1941 to 1942 period. Each transfer was accompanied by an entry certifying that the veteran was found to be physically qualified for transfer. The veteran was discharged in June 1946. He submitted a claim for service connection of a scar on the right hand that was received in July 1946. A copy of his June 1946 separation examination was included in his file. His claim was denied in July 1946, as the scar was not shown on the medical evidence of record. He was notified of the decision in July 1946. The veteran then submitted a claim to reopen the issue involving his right hand and to establish service connection for a right ankle injury in July 1992. This claim was denied in October 1992. In November 1992, the veteran submitted a statement wherein he stated that he injured his right hand in 1941 while serving aboard the USS PATTERSON (DD 392). He stated that he had suffered a right ankle injury while on duty at the Naval Air Station (NAS) at Johnston Island during the Battle of Midway in June 1942. He submitted copies of VA treatment records pertaining to a period of hospitalization at the VA Medical Center, North Chicago, Illinois, during the period from October 19, 1990, to October 27, 1990. The records pertained to treatment provided for right lower extremity deep venous thrombosis. The discharge summary made no reference linking the veteran's diagnosis to any incident of service. However, the veteran did submit a copy of a medical history that was provided by him to the examiner which indicated that he injured his right leg in June 1942 when he was "shot" by the Japanese in World War II. In April 1993, a Congressional inquiry was received from Representative John Porter. Mr. Porter indicated that he had contacted the National Personnel Records Center (NPRC) and was not successful in obtaining any further medical records pertaining to the veteran. He included the NPRC response to his inquiry. The veteran testified at a hearing at the RO in November 1993. He repeated his assertion of how he sustained the laceration to his right thumb. He also further described how his right ankle was trapped between two whale boats while he was holding a detonator to a bomb being loaded at the NAS. The veteran further testified that he had not received treatment for either injury subsequent to service. He testified that he was told by Navy doctors, at the time of the trauma, that his injury would not bother him until he was in his 60's. The veteran further testified that he developed a bad case of varicosity in his 60's and attributed it to his right ankle injury in service because he felt the Navy doctors had predicted the problem. The veteran acknowledged that efforts had been made by VA, both in 1946, and in conjunction with his current claim, to obtain additional records. The veteran theorized that some of the records may have been destroyed. As noted previously, the Board's 1996 decision was vacated by the Court in October 1997. The veteran was notified of this action and presented with an opportunity to provide additional evidence or argument. The veteran responded in February 1998. He stated that he had exhausted every avenue for additional information. The only document he had to offer was a reply from the National Archives, dated in October 1995, which stated that they had conducted a search of the available logs for the USS PATTERSON and did not find the veteran's name mentioned or any evidence of the ship being in a hurricane. The letter also indicated that they were unable to locate sick bay logs or administrative logbooks for Johnston Island. The reply indicated that the Navy destroyed most medical (sick bay) logbooks for World War II. Finally, the letter said that they had examined a list of patients at the U. S. Navy Hospital at Pearl Harbor but did not locate the veteran's name. The periods searched were from December 1940 to January 1941 and from June 1942 to December 1942. In October 1998 the RO contacted the veteran and requested that he provide several items in support of his claim. First, he was asked to provide a direct statement from the physician(s) that had treated him for his varicose condition and who may have opined that the disorder was related to his right ankle injury in service. Second, he was asked to provide information regarding any VA or non-VA health care providers that may have provided treatment for either his right hand or right ankle. Third, the veteran was requested to provide copies of additional battle reports for Johnston Island, if he had them, or to provide additional details regarding his right ankle injury in June 1942. The veteran responded in October 1998. He said that he was unable to locate the VA physician that had attended him during his last hospitalization. He also stated that he was submitting copies of battle reports in his possession, however, there is no indication that the veteran did so as they are not contained in the claims file. The veteran provided additional comments regarding his right thumb injury and his right ankle injury. He also included an extract from a book that reported that the Japanese forces planned to attack Johnston Island in August 1942. Finally the veteran included a duplicate copy of the medical history form from his October 1990 hospitalization. The RO also requested information regarding the veteran's injuries and his combat status from the U.S. Armed Services Center for Research of Unit Records (USASCRUR)) in December 1998. The USASCRUR response was received in March 1999. The response noted that a history of the PATTERSON was included and that no mention was made of the ship having been in a typhoon in 1941. The response also noted that the official records for the ship, prior to December 7, 1941, were missing. The report failed to address any findings pertinent to Johnston Island, as requested. The veteran was afforded a VA examination in August 1999. In regard to his right hand, the veteran related that the scar on his hand caused awkwardness of thumb motion and that it was sensitive directly over the scar. The scar did not cause any pain. Physical examination of the right hand revealed a two inch scar at the base of the right thumb that was directly over the first metacarpal from its base to the metacarpophalangeal joint. The scar was freely moveable and sensitive to touch, but without pain. The examiner noted that there was involvement of a small portion of the thenar muscle at the base of the first metacarpal. X-rays of the right thumb were interpreted to show mild osteoarthritis at the first metacarpal-carpal joint. The examiner noted that this was a normal finding as this joint moved more than any other in the body and the veteran was 77 years old. In regard to the right ankle and leg the examiner noted the prior history of injury in service as described by the veteran. There was a past history of hospitalization for phlebitis in 1990. He had pain in the right leg to the ankle and wore elastic hose below the knee. Physical examination of the right leg revealed extensive varices in the lower leg with no obvious varices in the right thigh. There were no significant varicose veins in the left leg. The examiner noted that there was a small one-half inch scar over the anterior right ankle that was freely moveable and nontender. The veteran stated that that was where he was first injured. The veteran had a full range of motion of the right ankle without pain or weakened movement to resistance. There was no swelling or crepitus within the right ankle. The examiner further reported that there was no significant objective evidence of a lack of endurance or coordination on right ankle motion. X-rays of the right ankle were interpreted to show mild degenerative joint arthritis and a calcaneal spur. The examiner's final diagnoses were: (1) status following laceration of the right thumb undoubtedly caused mild symptoms of awkwardness on use of the thumb because of partial thenar muscle involvement. This did not lessen the strength of the thumb, so a partial loss of function of the right thumb existed; and, (2) status following injury to his right ankle with minimal scar noted and no objective findings of underlying musculoskeletal damage. The examiner stated that the severe varices and past phlebitis on the right lower extremity had no direct relationship to the ankle injury. The examiner noted, however, that the scars on the right hand and right ankle were consistent with the history of injury on active duty. II. Analysis The Board finds that the veteran's claims of entitlement to service connection for right thumb and right ankle scars are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has presented claims which are not inherently implausible. Furthermore, upon examination of the record, the Board is satisfied that all relevant facts have been properly developed in regard to his claims and that no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime or peacetime service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). A. Service Connection for right hand disability In this case, the veteran contends that he suffered a laceration to his right thumb during the winter of 1940-1941 while serving aboard the USS PATTERSON. The SMRs are negative for any treatment for the laceration. However, the veteran provided credible statements and testimony as to the circumstances of the injury and the treatment provided. Moreover, the Board notes that he filed his claim for the laceration approximately one month after his discharge from service in 1946. His claim was denied without benefit of any examination based upon the lack of evidence in the SMRs. A VA examiner commented in August 1999 that the scar on the right thumb was consistent with the veteran's history of injury. Further, the veteran's manner of how he was injured is consistent with the type of service involved at the time, namely, serving aboard a destroyer at sea. Whether the vessel was or was not in a typhoon is not dispositive. Given the type of vessel involved, the vessel's operation on an open ocean, it can be reasonably concluded that the veteran was injured on deck, whether by a broken plate or by striking his hand on the vessel. The Board finds further supportive evidence in that the veteran filed a claim for the injury one month after his discharge. Further, the Court, in its October 1997 decision, noted that the veteran was competent to provide lay evidence that the scar on his right hand was the result of an in-service injury. In consideration of all of the evidence of record, and after resolving reasonable doubt in favor of the veteran, the Boards that service connection is warranted for residuals of a laceration of the right thumb. B. Service connection for right ankle injury The analysis of the injury of the veteran's right ankle is similar to that of the right thumb issue. The veteran's SMRs are negative for any reports of treatment, as was his discharge physical examination. However, the VA examiner, in August 1999, found that the scar on the right ankle was consistent with the injury described by the veteran. The examiner clearly stated that there was no residual musculoskeletal disability of the ankle. The arthritis noted on the x-rays of the right ankle was not attributed to the alleged injury in service. The veteran's lay statements and testimony are credible as to how he could have injured his right ankle in service. Further, as with the veteran's lay statements regarding the laceration of his right thumb, the Court noted that the statements served to well ground the claim. In reviewing the veteran's claim in context with all of the evidence of record, and after resolving reasonable doubt in his favor, the Board finds that service connection for residuals of a scar from a right ankle injury is warranted. In making the above findings the Board does not express any opinion as to whether or not either injury was sustained while veteran engaged in combat with the enemy. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1999). The Board need not answer the question in order to favorably resolve the veteran's claims, and the Board notes that the right thumb injury occurred prior to the commencement of World War II. C. Service connection for thrombophlebitis of the right ankle The veteran is seeking service connection for thrombophlebitis of the right ankle. The legal question to be answered initially is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail with respect to this claim and there is no duty to assist him further in the development of this claim. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, 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) (1999). Moreover, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In this case, the veteran's SMRs are negative for any reference to thrombophlebitis during the veteran's six years of active duty. VA records submitted by the veteran for his 1990 period of hospitalization do not associate his diagnosis of thrombophlebitis with any incident of service, to include a right ankle injury. While the record shows that the veteran currently has thrombophlebitis of the right leg, first documented approximately 44 years after his separation from service, he has submitted no medical or scientific evidence relating his current condition to his military service. As noted previously, the VA records submitted do not relate the veteran's thrombophlebitis to his period of service. Rather, they merely note the veteran's reported history of being "shot" in the right leg in service. An event that did not occur. The veteran has contended that he was told by VA treating physicians that his thrombophlebitis was related to his right ankle injury. The veteran was requested to obtain a statement in support of the allegation but said that he could not locate the VA physician. He has submitted no other medical or scientific evidence in support of his allegation. While the veteran claims that he developed thrombophlebitis due to his right ankle injury in service, he has offered no competent evidence to establish such a relationship, other than his own unsubstantiated contentions. While the veteran is certainly capable of providing evidence of symptomatology, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). The medical etiology of thrombophlebitis cannot be established by the veteran's own lay opinions. Grover v. West, 12 Vet. App. 109, 112-133 (1999); Robinette v. Brown, 8 Vet. App. 69, 75-77 (1995). A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since the service medical records do not show thrombophlebitis during service, and as the veteran has submitted no competent evidence to support his claim that this condition is in anyway related to his period of service, caused by his right ankle injury, or aggravated by his right ankle injury, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that this claim is well grounded. 38 U.S.C.A. § 5107. Hence, the benefit sought on appeal is denied. Although the Board has disposed of the claim of entitlement to service connection for thrombophlebitis of the right ankle on a ground different from that of the RO, that is, whether the veteran's claim is well grounded rather than whether he is entitled to prevail on the merits, he has not been prejudiced by the Board's decision. In assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board notes that no analysis regarding the veteran's involvement in combat is required to adjudicate this issue. The veteran has claimed that his thrombophlebitis is secondary to his right ankle injury, an event that the Board has already concluded occurred. The issue of combat involvement is not pertinent to the medical nexus opinion necessary to relate thrombophlebitis to right ankle injury residuals. Finally, based upon the Court's October 1997 decision and the Board's April 1998 remand, the veteran was notified of his need to provide specific information in support of his claim that his thrombophlebitis was related to his right ankle injury. He was requested in October 1998 to provide documentation from his VA physician(s) this his thrombophlebitis was the result of his ankle injury. He was also requested to identify any sources of medical treatment records. As noted previously, the veteran responded that he could not locate the physician or provide additional evidence. Moreover, he failed to provide any other evidence on his own and did not indicate any other source of evidence to support his contention. Robinette, 8 Vet. App. at 79. Accordingly, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disability. ORDER Service connection for residuals of laceration of the right thumb, and residuals of a scar from a right ankle injury is granted. Service connection for thrombophlebitis of the right ankle is denied. DEREK R. BROWN Member, Board of Veterans' Appeals