Citation Nr: 0002244 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-04 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a right ankle condition. 2. Entitlement to service connection for a right knee condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Blackmon, Counsel INTRODUCTION The appellant served on active duty from June 1966 until his retirement from service in June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In particular, the October 1996 rating decision denied entitlement to service connection for right knee and ankle disabilities. The record reflects that the appellant filed a notice of disagreement with several issues addressed in the context of this rating determination in September 1997. A statement of the case relative to these issues was forwarded to the appellant in January 1998. The appellant filed his substantive appeal in this matter in March 1998. The record further discloses that the appellant was afforded a personal hearing before the RO in this matter in February 1999. In conjunction with this hearing, the appellant withdrew from appellate consideration the issue of entitlement to an increased evaluation for hypertension with asymptomatic mitral insufficiency, status post valve surgery. In July 1999, the Hearing Officer granted various claims for service connection and increased rating evaluations. This award was considered a full grant of benefits of the issues sought on appeal, with the exception of the claims for service connection for right ankle and knee disabilities for which the Hearing Officer affirmed the RO's denial of these claims. Accordingly, these issues remain in appellate status, and are the subject of the decision below. FINDING OF FACT The claims of entitlement to service connection for right ankle and right knee conditions are not supported by cognizable evidence showing that claims are plausible. CONCLUSION OF LAW The claims for entitlement to service connection for right knee and right ankle conditions are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background An April 1966 examination report indicated that the appellant was clinically evaluated to be without defect or abnormality. There were no objective findings noted on examination relative to the musculoskeletal system. A December 1976 clinical report indicated that the appellant was seen for complaints of right knee problems. The report noted that the appellant provided a history of stiff knees after bending at the knee joint for long periods of time. A diagnostic impression was not noted. During a service department examination, conducted in March 1978, the appellant reported a history of intermittent dull, aching pain in his knees for the past year. The appellant denied any swelling associated with these episodes. It was noted that x-ray studies, conducted in October 1977, were negative for any abnormalities. The medical examination report was negative for any clinical findings or diagnosis relative to the right ankle or knee. The appellant was seen in February 1981 for routine physical examination. The clinical report indicated that the appellant reported a history of "swollen or painful joints in 1977." In this context, it was noted that the appellant's right knee was no longer an active problem. The report also noted that the appellant's medical history was significant for fractures of the left ankle in 1961, and for fracture of the right ankle in 1963, with no sequelae following either incident. There were no findings noted relative to the right knee or ankle on examination. A medical examination report, dated in April 1982, noted that the appellant's medical history was significant for bilateral ankle fracture, with no evidence of disease. There were no findings made relative to the ankle on examination. A June 1983 examination report referenced a history of painful knees in 1975, and fracture of the right ankle, with no evidence of disease found regarding either condition. Examination conducted at that time was negative for any findings relative to the right ankle or knee. Medical examination reports, dated in 1984, 1985, and 1986 were negative for any clinical findings or diagnosis relative to the right ankle or knee. In March 1987, the appellant was evaluated for complaints of a sore knee. The examiner opined that there was a possible foreign body in the right knee. Examination showed some exudate from a lesion, which appeared to resolve. It was noted that the appellant thereafter experienced the onset of slight edema, which resolved. His edema was noted to increase following performance of yard work. Examination showed moderate effusion prepatellar. There was mild tenderness to palpation primarily along the lateral aspect of the knee. The assessment was prepatellar bursitis of the right knee. The clinical report indicated that the knee was aspirated of clear, yellow fluid. The appellant was evaluated days later, and the knee showed moderate effusion prepatellar, with slight ecchymosis and no tenderness. The appellant exhibited good range of motion. The assessment was infection of the right knee. By April 1987, it was noted that the appellant reported there was no pain in the knee. The knee was observed to still be enlarged. The appellant exhibited normal range of motion on examination, with slight ecchymosis. X-ray studies of the knee, conducted in April 1987, revealed no significant abnormalities. Service medical examination reports, dated in April 1988 and 1989, noted a history of (unspecified) ankle fracture in 1962, which the examiner noted to be a remote injury. The 1988 report indicated that the appellant was noted to be "without any significant interval medical history, except for prepatella bursitis improved on medication." There were no objective clinical findings noted on either examination. A June 1993 clinical report indicated that the appellant was evaluated for complaints of right ankle pain. He reported a one month history of pain, which decreased after several days swelling. He reported the onset of increased symptoms of pain after a four mile walk. He also reported difficulty sleeping, and stiffness in the morning. It was noted that the appellant sustained bilateral ankle fracture while in high school. The examiner observed that the appellant utilized an orthotic device secondary to right large toe pain. On examination, range of motion was within normal limits. Strength was evaluated as 5/-5. Heel raises were more difficult on the right side, although the appellant was able to perform 10-20 repetitions. Mild effusion was detected. A clinical assessment of chronic mild right ankle sprain with weakness was noted. When evaluated later that month, the appellant reported increased right ankle pain. A July 1993 medical examination report indicated that the appellant reported a history of right ankle fracture in 1962, with a left ankle fracture in 1964. The clinical report was negative for any findings of the musculoskeletal system relative to the right ankle or knee. The appellant was next seen in July 1993 for complaints of soreness at night. He reported that he was less sore after exercise. The appellant was instructed to continue with exercise program, to include use of "ankle machine." When evaluated later that month, the appellant reported that he utilized his bicycle only a few times over the previous weekend, without increased right ankle pain. He also reported decreased pain at night with plantar flexion. He was instructed to continue on his exercise program, to include use of the ankle machine. The appellant was examined two days later, at which time he reported that he rode his bicycle that day without any problems. He reported mild soreness with plantar flexion at night. The examiner advised him to continue with his exercise program. A September 1995 medical examination report indicated that the appellant reported a history of (unspecified) right and left ankle fractures in 1960, 1962, and 1968. There were no findings made on examinations relative to the musculoskeletal system, to include the knees or the ankles. On separation examination, conducted in March 1996, the appellant reported a medical history significant for "swollen or painful joints," "broken bones," and bursitis of the knee. With respect to this reported history, the examiner noted that the appellant sustained fractures of the right and left ankles, with the right ankle fracture reportedly having occurred in 1989. On physical examination, there were no findings of defect or abnormality relative to the musculoskeletal system or lower extremities pertinent to the right ankle or knee. The appellant underwent VA examination in September 1996. The medical examination report indicated that the appellant reported a history of a fracture of the right ankle in 1968. He reported that the ankle was casted and healed uneventfully. It was noted that the appellant sustained a fracture of the left ankle in 1962, and that this ankle also healed uneventfully. The examiner noted that there was no residual discomfort or objective findings relative to either ankle. With respect to the claimed right knee disorder, it was noted that the appellant reported a history of two or three minor episodes of bursitis in the right knee, which the appellant recalled having occurred in 1977 or 1978, and in 1987. The examiner noted that this was apparently a prepatellar bursitis, which had not been evident in recent years. On physical examination, the appellant's gait was observed to be normal. The appellant exhibited a full range of motion of the ankles, and knees. Reflexes of the knees and ankles were evaluated as active. There was no evidence of sensory disturbances of the extremities. The examiner noted that diagnostic studies had been conducted within the preceding six month period. The diagnostic impression did not include findings relative to the right ankle or knee. In correspondence, dated in September 1997, the appellant indicated his contention that the claimed disabilities of the right ankle, and right knee were incurred during service. With respect to the right ankle condition, the appellant reported that he sustained a fracture of the right ankle in September 1968, although the clinical report documenting this injury was not included among his service medical records. The appellant further indicated that his physician advised him that he had developed arthritis associated with his previous bilateral ankle fracture. With respect to the right knee condition, the appellant reported the recurrence, one month earlier, of symptoms of swelling, and a dull persistent ache which increased with movement of the "knees." He indicated that he experienced an "arthritis-type pain in the right knee most nights." In correspondence, dated in March 1998, the appellant indicated that while he sustained a fracture of his right ankle in 1960, prior to his enlistment in service, he subsequently fractured the right ankle in September 1968. He indicated that the clinical report of this treatment was missing from his service records, but noted that service records did document treatment for episodes of right ankle pain. He reiterated that medical personnel had advised him that degenerative changes had developed following the ankle fractures. The appellant further noted that he reported a history of ankle pain at the time of his separation examination. Relative to his right knee condition, the appellant indicated his belief that the medical evidence established that a chronic right knee disorder was incurred during service. It was the appellant's contention that the examining physician on separation examination indicated that both his right ankle and right knee conditions were associated with the same degenerative joint process which affected his right great toe. A January 1999 private medical report indicated that the appellant was evaluated with degenerative arthritis of the right great toe. The clinical report noted that there was no other joint arthritis. During a February 1999 hearing, the appellant reported a history of fractures of the right ankle prior to and during service. He noted that medical personnel opined that his ankles would become problematic later in life. Relative to the right ankle, the appellant described current symptomatology of arthritic pain. He indicated that his ankle symptoms were also responsive to changes in the weather, particularly cold damp weather. He indicated that he utilized aspirin or Tylenol to treat these symptoms. Regarding his right knee disorder, the appellant stated that service medical records document intermittent treatment for right knee complaints. He indicated that his right knee symptoms have continued since that time. He described an arthritis-type pain associated with the right knee, reported to be similar to pain he experiences in other joints. He also described symptoms of swelling, and a dull persistent ache of the right knee. The appellant maintained that the examining physician, on his separation examination, indicated that both the right ankle and knee disorders were, "like his right toe condition," which was manifested by degenerative arthritis. The appellant was afforded further VA examination in March 1999. The medical examination report indicated that the appellant reported a history of onset of right knee pain in 1974, for which he took aspirin. He reported a recurrence of his right knee pain in 1985 with acute swelling, and redness. He indicated that his knee symptoms were treated with aspirin and Tylenol, and that his symptoms gradually improved. He reported continued pain in the knee after long hikes. On examination, the examiner observed that the right knee was without swelling. It was noted that the right knee was similar in appearance to the left knee. There was no evidence of tenderness involving the knee. There was no swelling or redness associated with the knee. The appellant exhibited full extension of the knee to 0 degree, and full flexion of the knee to 140 degrees. There was no pain on motion. The examiner noted that McMurray's sign and Drawer test were negative, and that these and other testing measures did not elicit evidence of instability, pain, or discomfort on examination. X-ray studies of the right knee revealed no frank post-traumatic bony deformity. Studies of the right knee were noted to reveal mild productive osteoarthritic changes, apparent patellofemoral joint narrowing, and multiple joint calcifications. The diagnostic impression was status post acute inflammatory condition of the right knee, currently asymptomatic. The medical report further noted that the appellant provided a history of bilateral ankle fracture in the 1960s. Specifically, he reported that he sustained a fracture of the left ankle in 1966. He reported that the right ankle was fractured in 1968. On each occasion, the ankle was reportedly treated with casting for immobilization. The appellant reported that he sprained the right ankle in 1993, at which time he was treated with wrapping. He indicated that he does not presently take any medications for his ankle condition, and acknowledged that he "has no symptoms pertaining to the ankles." The examiner indicated that evaluation of both ankles showed them to be "perfectly normal bilaterally." There was no evidence of deformity, tenderness, or limitation of motion. X-ray studies of the right ankle revealed soft tissue calcifications in addition to advanced osteoarthritic changes. Talar articular involvement, antersuperior talar spurring, and heel spurring were also detected. The ankle mortise was noted to be intact. The examiner noted that historic correlation was needed to determine if remote fracture, as opposed to advanced osteoarthritic changes alone, contributed to the appellant's mildly altered malleolar contour. In his assessment, the examiner noted a diagnostic impression of status post fracture of both ankles. Analysis In this case, the RO has continued to deny the appellant's claims for service connection for disorders of the right ankle and knee. In conjunction with its review of the evidence relative to these claims, the RO determined that while service medical records documented treatment in service, there was no evidence of chronic or residual impairment of the right ankle or knee shown on examination upon to separation from service. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999); see also Degmetich v. Brown, 104 F.3d 1328, 1331-32 (Fed.Cir. 1997). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). The threshold question in this case is whether the claims are well grounded under 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, 81 (1990). There must be more than an allegation; the claim must be accompanied by supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for the appellant to be granted service connection, there must be evidence of both a service connected disease or injury and a present disability which is attributable to such disease or injury, otherwise, the claim is not well grounded. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The significance of presenting a well grounded claim is that such a claim triggers the VA's chronological obligation to assist the claimant in the development of facts pertinent to the claim. Where the claimant fails to present a well grounded claim, there is no duty to assist him or her on the part of the VA. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally, a well grounded claim for service connection requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 489, 504, 506 (1995); see also Epps v. Gober 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well grounded claim set forth in Caluza, supra). The second and third Caluza elements can be satisfied under 38 C.F.R. 3.303(b) by a (a) evidence that the condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim must be presumed. See Robinette v Brown, 8 Vet. App. 69, 75 (1995). Service connection for a right knee disability The appellant essentially contends that he incurred a right knee disorder during active duty, and that he continues to experience residual impairment associated with the right knee as a result. Where the determinant issue involves a question of medical diagnosis or medical causation, as here, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded; if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). With respect to the claim for service connection for a right knee condition, the Board notes that while the appellant was treated during service for complaints relative to the right knee, it is apparent that symptoms associated with the right knee resolved following treatment, and that no residuals have been identified at any time since the appellant's discharge from service. Moreover, the Board notes that the appellant has alleged that his current right knee condition is a manifestation of the same degenerative process that has affected his right big toe. In this regard, it is maintained that the in service complaints are indicative of the onset of progressive degenerative changes involving the right knee. The appellant has stated that he experiences the same arthritic-type pain as affects his right big toe, in addition to other joints. However, the appellant has presented no competent medical opinion in support of his contention in this regard of a progressive degenerative multiple joint arthritis. VA examinations have consistently found no evidence of current pathology involving the right knee. Further, while recent x-ray studies have shown mild osteoarthritic changes of the right knee, the examiner attributed no clinical significance to such finding which would support the appellant's contention that he has a current right knee condition that is part of a progressive degenerative process involving multiple joints. The Board further notes that the appellant has maintained that the examining physician, on separation examination, likened his right knee condition to the degenerative joint disease of the right big toe. A thorough review of the referenced medical report is negative for any such documented finding or opinion. In fact, the separation examination report was negative for any objective findings or diagnosis referable to the right knee. Consequently, after a review of the evidence, the Board must conclude that the appellant has offered no objective medical evidence that a right knee disorder is clinically extant, or that such impairment is related to his in service complaints of right knee symptoms. The Court has held that "[i]n the absence of competent medical evidence of a current disability and a causal link to service or evidence of chronicity or continuity of symptomatology, a claim is not well grounded." Chelte v. Brown, 10 Vet. App. 268 (1997); Savage, supra. Service connection for a right ankle disability As indicated, service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In this case, the appellant contends that he sustained fractures of both the right and left ankle prior to service, with a subsequent fracture of the right ankle while in service. The appellant acknowledges, however, that clinical records documenting the reported in service fracture are not of record. In this regard, the Board notes that a veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated. 38 U.S.C.A. § 1111 (West 1991). Only such conditions as are recorded in examination reports are to be considered as "noted." The appellant's reported history of the pre- service existence of a disease or injury does not constitute notations of such disease or injury, but is considered with all other evidence in determining if the disease or injury pre-existed service. See, Paulson v. Brown, 7 Vet. App. 466, 470 (1995); 38 C.F.R. § 3.304(b). In this case, there is no objective medical evidence of a preservice fracture of the ankles and, specifically, the right ankle other than the medical history reported by the appellant. The April 1966 examination report was silent for findings related to the right ankle. Subsequent clinical findings on physical examination nor diagnostic test results have recorded findings consistent with the appellant's reported history of a preservice fracture. While the VA examiner noted a diagnostic impression of status post fracture of the right ankle, he indicated that historic correlation was necessary to confirm a right ankle fracture. Thus, the only evidence of a preservice fracture of the right ankle is the appellant's contentions. Therefore, the Board finds that clear and unmistakable evidence has not been presented to rebut the presumption that the appellant was in sound condition upon his entry into service. Accordingly, the Board must determine whether the appellant's current right ankle condition was incurred during active duty service. Turning now to the assembled medical evidence of record, the Board finds that the evidence reflects intermittent treatment during service for right ankle complaints. Service medical records are silent with respect to any in service fracture of the right ankle. Examination upon separation from service, in 1996, was negative for any findings of pathology associated with the right ankle. VA medical examination is likewise negative for any evidence of a chronic right ankle condition. In fact, the right ankle was noted to be "perfectly normal" during the most recent evaluation. Furthermore, the appellant acknowledged that the right ankle was not symptomatic. The VA examiner indicated that current radiographic evidence of mild degenerative changes could not be attributed to a previous fracture in the absence of correlating clinical documentation, which is not present in this case. Inasmuch as the appellant has not presented competent medical evidence of the current existence of a disability manifested by residuals of a right ankle fracture, which can be related to the appellant's period of active duty service, his claim must be denied as not well grounded. See Caluza, supra. In this instance, the question as to whether the appellant's current right ankle condition had its onset during service involves a medical nexus determination as to causation. Accordingly, competent medical evidence is required. As no competent medical evidence is of record indicating a medical link between current degenerative changes of the right ankle and the appellant's period of service, or that such a condition was manifested within one year after the appellant's discharge from service, the claim must be denied as not well grounded. Other Considerations Relative to each of the claims presented, the Board recognizes that these claims are being disposed of in a manner that differs from that used by the RO. The RO denied the appellant's claims on the merits, while the Board has concluded that the claims are not well grounded. However, the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the appellant solely from the omission of the well grounded analysis." See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). As the foregoing discussion explains the need for competent medical evidence of a current disability, and competent medical evidence linking the disability to the appellant's active duty service, the Board views its discussion as sufficient to inform the appellant of the elements necessary to complete his application for service connection for the claimed disabilities. Robinette v. Brown, 8 Vet. App. at 77- 78. ORDER Service connection for a right ankle condition is denied. Service connection for a right knee condition is denied. Deborah W. Singleton Member, Board of Veterans' Appeals