BVA9501747 DOCKET NO. 93-05 875 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES Entitlement to service connection for a left hip disorder. Entitlement to service connection for a left knee disorder. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michele M. Florack, Associate Counsel INTRODUCTION The veteran served on active duty from September 1943 to December 1945. This appeal to the Board of Veterans' Appeals (Board) arises from May 1991 and August 1992 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in failing to grant him service connection for a left hip disorder, a left knee disorder, and bilateral hearing loss. He maintains that he has a left hip disorder that is either the direct result of an injury in service or is due to his service-connected pes planus. He also contends that he has a left knee disorder due to his pes planus. He further contends that he incurred hearing loss from exposure to a mortar blast in 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 preponderance of the evidence is against the claims for service connection for a left hip disorder and a left knee disorder. It is also the decision of the Board that the appellant 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 bilateral hearing loss is well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. A left hip disorder was not manifested in service and is not shown to be related to the veteran's active service or any incident therein or to have been caused by his service-connected pes planus. 3. A chronic left knee disorder was not manifested in service and is not shown to be related to service or to the veteran's service-connected pes planus. 4. No medical evidence has been submitted to relate the veteran's bilateral defective hearing to his active military service or any incident therein. CONCLUSIONS OF LAW 1. The veteran's left hip disorder was not incurred or aggravated in service and is not proximately due to or the result of his service-connected pes planus. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303(b), 3.310(a) (1993). 2. The veteran's left knee disorder was not incurred or aggravated in service and is not proximately due to or the result of his service-connected pes planus. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1993). 3. The veteran has not submitted evidence of a well-grounded claim for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Left Hip and Left Knee Disorders These claims are plausible and, thus, well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The case was remanded for further development in March 1994. We are now satisfied that the mandated "duty to assist" the claimant is met. To establish entitlement to service connection requires that it be shown that the claimed disability is due to disease or injury which was incurred in or aggravated in service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be established on a secondary basis where it is demonstrated that a service-connected disorder directly or proximately caused the disorder for which service connection is sought. 38 C.F.R. § 3.310(a) (1993). The veteran was seen in service in February 1944 for a complaint of pain in the knees. Examination, including X-rays, was negative for any knee pathology, and the veteran returned to regular duty. The veteran received a Purple Heart for injuries incurred during an aerial bombing in Rohrweiller, Germany, in February 1945. The service medical records describe multiple lacerated wounds of the forehead, chest wall, and left hand. A left hip or left knee injury or disorder was not shown at that time; nor was a left hip or left knee injury, disorder, or abnormality shown at any time in service or at the veteran's examination for discharge in December 1945. In March 1946, J. H. Kott, M.D., noted that the veteran complained of knee pain, and opined that the veteran's bilateral "weak feet" (pes planus) were probably the cause of the knee pain. A rating decision in July 1946 denied service connection for a knee condition as "not shown." That decision was not appealed by the veteran, and it became final. However, the claim for service connection for a left knee disorder is reopened because the evidence now shows that the veteran does have a left knee disorder. Treatment records of P. Watsky, M.D., dated in March 1990, as well as records of other physicians, show the veteran has arthritis. The first evidence of a left hip disorder in the claims file is a report from A. Parisi, M.D., dated in June 1990, indicating that X-rays showed degenerative joint disease of the hip. To support his claim that the left hip disorder is secondary to his service-connected pes planus, the veteran submitted a note from Dr. Watsky, dated in November 1991, stating that the veteran did not have arthritis. An opinion from an orthopedist, B. E. Comstock, M.D., dated in May 1992, indicated that the veteran's pes planus would "contribute" to increased stress in the left hip, but suggested that the cause or origin of the left hip osteoarthritis was more likely an "unrecognized avascular necrosis of the left femoral head" due to injury. Dr. Comstock stated, based on the veteran's history, including a concussive injury in service and complaints of continuous pain in the left hip since six months after discharge from the army, that the veteran's osteoarthritis of the left hip resulted from an unrecognized avascular necrosis which was due to the concussive effects of a bomb in service. Dr. Comstock's statement also contained the opinion that the veteran's pes planus would contribute to the increased stress in the knees. At his personal hearing in May 1992, the veteran claimed that the left hip and left knee disorders were due to his service- connected pes planus. He testified that various doctors had stated so to him. In March 1994, the Board remanded the case for an orthopedic evaluation and an opinion as to the etiology of the left hip and left knee disorders. Pursuant to that remand, the veteran was examined in May 1994. Osteoarthritis or degenerative arthritis of the left hip was diagnosed. The examiner commented: I do not feel that there is a cause or relationship between the osteoarthritis of the left hip and the service-connected pes planus. I rather feel that the changes as noted in his left hip are those seen on aging. Chondromalacia of the left patella and probable early osteoarthritic changes were also diagnosed. The examiner commented: I do not believe that the chondromalacia of the patella is correlated to his pes planus, but is more a product of aging. He added: It is true though that pes planus may have a slight aggravating effect on chondromalacia of the patella as well as on the osteoarthritis of the left hip in that it may influence his gait a little. However, walking in the office, (the veteran) walked with what I call a normal gait for a person with pes planus. Addressing first the question of whether a left knee disorder or a left hip disorder was incurred in service, we find that the evidence does not support such conclusions. Although the veteran was noted to have complaints of knee pain early in his active service, no pathology was found at the time. The knees were determined to be normal. He was returned to full duty. There were no further complaints or findings pertaining to the knees noted in service or on service separation examination. Consequently, there is no basis for a finding that a chronic knee disorder was present in service. Likewise, although complaints of knee pain were noted in 1946, no chronic knee pathology was established present at the time. So a left knee disorder is not shown present soon after service discharge. The veteran's service medical records contain no mention of complaints or findings pertaining to the left hip. There is no basis in the record for finding that a left hip disorder was present in service or soon thereafter. Dr. Comstock opined that the veteran's left hip disorder was incurred in service, based on a theory that arthritis of the hip was due to an unrecognized avascular necrosis which resulted from a concussive injury. That opinion was based on history provided by the veteran which included the blast injury and continuity of hip complaints beginning 6 months after service and extending to the present. The history of continuous left hip complaints throughout all these years is not confirmed anywhere in the record. Neither reports of VA examinations (including of the lower extremities) in 1946 and 1948 nor any private medical records prior to 1990 contain any notations pertaining to the hips. We find incredible that the veteran would have had complaints of hip pain for 45 years without the complaints being documented. And since the history on which Dr. Comstock's opinion is based is not credible, the opinion lacks probative value. In summary, there is no credible evidence linking the veteran's currently diagnosed left hip and left knee disorders directly to service. Consequently, service connection for those disorders on the basis of incurrence in service is not warranted. With respect to the claim for secondary service connection for left hip and left knee disorders, it is significant that to establish service connection on this basis it must be shown that there is a causal relationship between the disorders and the service-connected pes planus. There is no competent evidence that such a causal relationship exists. The VA examiner in May 1994 specifically discounted such a relationship. The veteran has not submitted any evidence to the contrary. The veteran's testimony at a hearing to the effect that physicians have told him that there is a cause and effect relationship between his pes planus and his hip and knee disorders is not borne out by statements of record by the physicians. One statement (by Dr. Watsky), submitted apparently to show that pes planus and not arthritis is the cause of the current left hip pathology and stating that the veteran does not have arthritis, is contradicted by earlier records of Dr. Watsky, which show he does. Finally, as to the opinions that the service-connected pes planus aggravates nonservice-connected left hip and left knee disorders, it is noteworthy that the United States Court of Veterans Appeals addressed the question of whether a disability that is aggravated by a service-connected disability is entitled to service connection in Leopoldo v. Brown, 4 Vet.App. 216 (1993), holding that the controlling law "provides for disability compensation only for a present 'disease, injury, or other physical or mental defect' resulting from 'personal injury suffered or disease contracted in line of duty' or for in-service aggravation of a pre-existing disease or injury, but not for aggravation of a nonservice-connected condition by a service-connected condition." Leopoldo at 219. Consequently, service connection on this basis is not warranted. Service connection for Bilateral Hearing Loss As is noted above, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Sensorineural hearing loss, as a disorder of the central nervous system, may be presumed to have been incurred during service if it becomes manifest to a degree of 10 percent within one year following separation from service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). The claimant has the initial burden of submitting a well-grounded claim. This involves showing current disability and credible evidence that links the disability with events in service or a service-connected disability. Montgomery v. Brown, 4 Vet.App. 343 (1993). If the claimant fails to do so, the claim is not well grounded. If a claim is not well grounded, the appeal must fail; and there is no duty to assist further in the development of the claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (1991). The service medical records show that the veteran's hearing was 15/15, bilaterally, or normal, at induction in March 1941. In February 1945, the veteran complained of right ear pressure and slight deafness. Cerumen was removed from the veteran's ear, and his hearing was shown to be 15/15, bilaterally. The veteran's hearing was again 15/15, bilaterally, at his discharge examination in December 1945. The first indication of a hearing loss was on audiological examination of the veteran in June 1982, almost 40 years after service. No credible evidence has been submitted to show the disorder is due to service or to any incident therein. The record indicates that the veteran was possibly exposed to acoustic trauma during combat, as evidenced by his injuries from aerial bombing in February 1945. It is also evident that he currently suffers from bilateral loss of hearing. However, the veteran has submitted no medical evidence of a nexus between the hearing loss and the events in service. The initial finding of defective hearing in 1982 postdates active service by more than 35 years, and the veteran does not offer any evidence that a hearing loss was clinically identified during those years. His allegations that the current hearing loss is attributable to noise exposure in service are not supported by any clinical data and, standing alone, are not of significant probative value on the issue of the etiology of the hearing loss, as he is not shown to have medical expertise in the fields of audiology or otology. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Although he testified in May 1992 regarding his belief that such a relationship exists, because he is a layperson untrained in medicine, his testimony is not probative evidence on medical causality. Espiritu v. Derwinski 2 Vet.App. 492 (1992). As there is no competent evidence providing the requisite nexus between the current disability and service, the claim for service connection for a bilateral hearing loss is not well grounded. ORDER Service connection for a left hip disorder is denied. Service connection for a left knee disorder is denied. The claim for service connection for bilateral hearing loss is dismissed. GEORGE R. SENYK Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.