BVA9507679 DOCKET NO. 92-02 624 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a bilateral hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from August 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from decisions from the Regional Office (RO). By rating action dated in December 1990, the RO denied the veteran's claim of entitlement to service connection for a bilateral hip disability. This case was previously before the Board in December 1992, at which time it was remanded for additional development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for a bilateral hip disability. He asserts that during the jeep accident in September 1943 in which he fractured two ribs (for which service connection has been established), he also sustained injuries to his hips. He reports that he was thrown out of the jeep and it rolled over him. He claims that he could not use his legs immediately after the accident occurred, but that his symptoms disappeared and he was able to continue his service. He reports that he was just told that he had a bad limb. He believes that X-rays of the hips were taken at the time of his service separation examination, and that he was told at that time that he would be crippled by the time he was fifty years old. He insists that he was told by a physician that the arthritis of his hips could have been caused by the jeep accident. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for a bilateral hip disability is well grounded. FINDINGS OF FACT 1. The veteran's service medical records contain no report of complaints or evidence of clinical findings concerning the hips. 2. A bilateral hip disability was first evident many years after service. 3. There is no competent medical evidence linking the veteran's bilateral hip disability, initially manifested approximately forty years following his discharge from service, to any in- service incident or event. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for a bilateral hip disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The initial question before the Board is whether the veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). "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 (1990). The veteran must meet this burden before the Department of Veterans Affairs (VA) is obligated to assist him. When this case was before the Board in December 1992, it was remanded in order to obtain additional medical evidence. Based on precedent opinions of the United States Court of Veterans Appeal (the Court) at that time, it appeared that the appellant's claim was well-grounded. Several cases issued by the Court since then mandate a different conclusion. In Tirpak v. Derwinski, 2 Vet.App. 609, the Court held that [a]lthough the claim need not be conclusive, it must be accompanied by evidence. The Court has also held that if the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). In Grivois v. Brown, 6 Vet.App. 136, 139 (1994), the Court emphasized that the "statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA...." Since the only evidence in support of the veteran's claim consists of his assertions of medical causality, the Board finds, as will be explained below, that the claim is not well-grounded. Under the law, service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Where a veteran served 90 days or more during a period of war and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the veteran has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the veteran's failure to meet the initial burden of the adjudication process, and the fact that by dismissal of his claim he is not burdened with the prior final adjudication on the merits, the Board finds that he is not prejudiced by its consideration of these issues. Thus, if he is able to submit a well-grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The service medical records disclose no complaints or abnormal findings concerning the veteran's hips. The veteran was seen in March 1943 for neuritis of the right ilio-inguinal nerve, secondary to surgery for an undescended testicle in 1938. He was involved in a vehicular accident in September 1943 when the jeep in which he was riding skidded while trying to avoid a collision, and he was thrown out of the jeep. During the ensuing hospitalization, the veteran expressed no complaints concerning the hips; neither does the medical data reveal evidence of hip pathology. Two ribs were reported to have been fractured. When he was hospitalized in November 1943, it was reported that he had been pinned under the jeep and that his right leg had bothered him constantly since that time. X-rays of the hip were repored as negative for fracture. On the service separation physical examination in November 1945, it was reported that the veteran had injured his chest and shoulder in July 1943. There were no abnormal findings noted concerning the hips. When the veteran was physically examined by the Department of Veterans Affairs (VA) in January 1949, he reported that he had injured his chest and shoulders in an accident in service in 1943. He also related that he had been treated by a private physician on several occasions since his service discharge for his back and shoulders. He made no mention of any problem involving his hips. Examination showed that movement of his legs at the hip and knee was "free." No diagnosis referable to the hips was made. The veteran was admitted to a private hospital in July 1970 following an automobile accident. At that time, it was noted by Dr. Kiefhaber that the veteran had pain with attempts to at bending his hip. When he was seen in a VA outpatient treatment clinic in June 1989, the veteran reported that he had injured his left hip in 1942. X-rays of the hip and lumbosacral spine showed degenerative joint disease, but no fractures. The veteran underwent a left hip arthroplasty in August 1990, and a right hip arthroplasty in April 1991. During the earlier hospitalization, it was noted that he had a long-standing history of bilateral hip pain, left greater than right. The April 1991 hospital report indicates that his right hip had been painful for two years. The record fails to provide supporting evidence for the veteran's claim that he sustained any injury to either of his hips in the 1943, in-service jeep accident. This is the case because of the total absence of clinical entries in the service medical records reflecting any complaints or treatment for hip abnormality, with the exception of an X-ray study which showed no sign of fracture of the hip. In addition, it is significant to point out that in claims for VA disability benefits the veteran submitted in 1945 and 1984, shortly after his service discharge and more than 35 years thereafter, he made no mention of any hip disability. This fact is totally inconsistent with his current claim that a bilateral hip disability was sustained at the same time as the service-connected rib fractures. The Board acknowledges that the veteran has recently undergone bilateral hip arthroplasties due to osteoarthritis of the hips. He has claimed that a VA physician told him that the in-service jeep accident could have caused the arthritis in his hips; however, there is no such evidence of record. Assuming arguendo that such an opinion was rendered, it appears to have been based in reliance on the veteran's account of the in-service jeep accident. As has been demonstrated above, however, the veteran's version of the accident is not corroborated by any contemporaneous, clinical records. Thus, any conclusion based on the veteran's history is invalid. As the Court has stated, [a]n opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet.App. 458, 461 (1993). The veteran testified during his hearing at the RO in November 1991 that, following the September 1943 accident, he did not recall having any additional problems with his hips in service. He also stated that he had apparently received treatment for his hips for the first time following service in 1985. This testimony does nothing to support a conclusion that a chronic hip disability had its onset in service, rather it points to an origin many years thereafter. The veteran has not submitted any competent evidence establishing that the bilateral hip disorder, first demonstrated many years after service, is in any way related or linked to an event in service. The medical record is of far greater probative value than the veteran's self-serving statements made on his own behalf and in support of his claim for monetary disability benefits. In this case the evidence in support of the veteran's assertion that there is a relationship between his 1943 in-service jeep accident and his bilateral hip disability consists solely of his own recent assertions. As well settled by the Court, lay persons are not competent to render medical opinions and where the determinative issue is one of the medical causation, competent medical evidence is required to the effect that the claim is plausible or possible in order to show that the claim is well- grounded. Grottveit v. Brown, 5 Vet.App. 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Thus, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A.§ 5107(a). In the absence of credible or competent evidence establishing a nexus between the veteran's current bilateral hip disability and an event occurring during his period of World War II service, or that osteoarthritis of the hips was evident to a compensable degree within one year thereafter, the Board must find that his claim for service connection is not well grounded. In so doing, the Board allows the veteran to begin his claim again in the future, if he can, on a clean slate, without the inertia inherent in a final denial on the merits. ORDER As the claim of entitlement to service connection for a bilateral hip disability is not well grounded, the appeal is dismissed. J.F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.