BVA9502635 DOCKET NO. 93-06 965 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Associate Counsel INTRODUCTION The veteran served on active duty from February 1988 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for service connection for a right knee disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran states that he has right knee pain which is attributable to a right knee disorder which originated during service. 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's claim for service connection for a right knee disorder is not well-grounded and must be dismissed. FINDING OF FACT The veteran has not submitted competent evidence of a current right knee disability linked to service. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim for service connection for a right knee disorder. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran is currently service-connected for a lumbar spine disorder, bilateral foot and ankle disorders, a ganglion cyst on his left wrist, and chronic headaches. He has a combined 40 percent disability rating for his service-connected conditions. His service medical records reflect no pathology of his right knee on his November 1987 enlistment examination report. On his medical history, he reported that he had fallen and hurt his knee at one time, but had no recent knee problems at that time. It was not specified which knee was affected or whether both were injured. His service medical records show a history of treatment for frequent complaints of bilateral foot and ankle problems, recurring headaches, and low back pain. Right knee symptoms are mentioned in a January 1991 medical history report, in which the veteran indicated he had "trick" or locked knee and reported that he was unable to kneel or put pressure on his right knee. They are also mentioned on a medical evaluation board report of April 1991, when physical examination revealed tenderness of the right knee that prevented the veteran from kneeling. The records are silent as to treatment, diagnosis, or manifestations sufficient to identify a knee disorder. On his VA examination in August 1991, the veteran said that he had been treated intermittently for knee pain that increased with running. X-rays made during the August 1991 VA examination revealed no bony changes in the veteran's right knee. The joint spaces appeared normal, and no fluid could be seen. The impression was negative for pathology. Physical examination showed that he had normal, full range of motion of all joints. He was able to squat and heel and toe walk without complaints. No atrophy or effusion was noted. No diagnosis of knee pathology was reported. In a February 1992 statement, the veteran's chiropractor, Dr. C.C. Smith, reported that he had been treating the veteran for back problems. He also reported that the veteran had complained of experiencing pain in his right knee. The chiropractor's examination observations and diagnoses of the veteran's condition did not contain any mention of right knee pathology. The chiropractor mentioned a loss of strength in the right leg was present. During a March 1992 RO hearing, the veteran discussed his various physical complaints disabilities, including right knee pain. He testified that, prior to entering service, he had no right knee problems and that his knee had begun to hurt during service. He reported that he frequently used to kneel on his right knee while performing his service duties as a mechanic. He stated that he currently has occasional periods when he is unable to put weight on his knee while kneeling unless he puts something soft between his knee and the ground to cushion it. He reported that he never received treatment for his right knee during service because it was always asymptomatic whenever he reported to sick call. He stated that it would become painful when he was driving an automobile, and sometimes it would pop and crack. At times, he said the pain would cause him to limp, but indicated that he had not noticed any swelling of the right knee. When he complained of knee pain to his chiropractor, he said that the chiropractor manipulated his knee, but that was the extent of his treatment. In March 1992, the veteran underwent a VA examination to evaluate his back disorder. Pain reportedly was all over the leg and not especially localized to the posterior aspect and was worse in knee joint. He had a slight limp on the right side while walking. On examination, the physician noted that the veteran was morbidly obese and that his weight had increased 35 pounds during the preceding six months. During the examination, the veteran reported that he was very physically active, performed all his own yard work and lawn mowing, and had recently cleared and dug a ditch on his residence. The diagnoses included no evidence of muscular or neurologic impairment of the lower extremities. II. Analysis The threshold question to be answered concerning this case is whether or not the veteran has presented evidence of a well- grounded claim; that is, one that is plausible, meritorious on its own, or capable of substantiation. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Section 5107 provides that the claimant's submission of a well-grounded claim gives rise to VA's duty to assist and to adjudicate the claim. However, if he has not presented such a claim, his appeal must fail and there is no duty on the part of VA to assist him in the development of his claim because such additional development would be futile. Id. Where a claimed disability is not shown during service or until long thereafter, and there is no medical evidence of linkage with service, or when there is no demonstration of current disability, a well-grounded claim has not been submitted. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992). It should be emphasized that to be deemed well-grounded, a claim must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Such evidence submitted in support of a claim is presumed to be true for purposes of determining whether the claim is well-grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well- grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The veteran claims that he has developed a right knee disorder as a result of service. It is interesting that there is a reference to a preexisting knee problem(s) in the record, but the evidence is not clear whether the right knee was involved. Entries noted in the service medical records do reflect two complaints of pain and tenderness. However, the most important point to be stressed is that the current record contains insufficient evidence to identify a disability, either during or after service, despite examinations designed to do so. Though the veteran has reported pain on motion of his right knee joint, X-rays of his knee have been negative for joint pathology, such as arthritis, which could be associated with his purported symptoms and although due consideration has been given to his testimony, being a layman, he is not able to provide competent evidence on the ultimate question posed in this case, which is medical causation and etiology. Rather, "it is the province of a trained medical professional, not the appellant, to draw such a conclusion." Jones v. Brown, No. 93-315 slip op. at 5 (U.S. Vet. App. Nov. 14, 1994). Without evidence from someone qualified to address the medical causation question, the veteran's claim of service connection may not be considered well-grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Absent a presentation of a well-grounded claim, the Board does not have jurisdiction to act. Boeck v. Brown, 6 Vet.App. 14 (1993). Therefore, the veteran's appeal must be dismissed. The RO is advised that decisions on the merits on this claim are to be regarded as dismissals, without finality as to the merits. See Grottveit v. Brown, 5 Vet.App. 91 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). As finality on the merits does not attach, there can be no prejudice to the veteran in dismissing the claim, even though the RO decision was on the merits. Compare Bernard v. Brown, 4 Vet.App. 384 (1993). ORDER The claim for service connection for a right knee disorder is dismissed as not well-grounded. M. CHEEK 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.