Citation Nr: 0000047 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 96-06 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for heart disease with hypertension. 2. Entitlement to service connection for a left leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from November 1957 to October 1959. This appeal arises from an August 1995 rating decision of the Winston-Salem, North Carolina, regional office (RO) which, in pertinent part, denied service connection for heart disease with hypertension and a chronic disability accounting for left leg pain. On September 8, 1997, a hearing was held at the RO before Barbara B. Copeland, who is a member of the Board of Veterans' Appeals (Board) rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). This matter was Remanded by the Board in January 1998 for the purpose of obtaining additional factual evidence and to afford due process to the veteran, and it has been returned to the Board for appellate review. FINDINGS OF FACT 1. The veteran has been variously diagnosed as having unstable angina, minimal coronary artery disease, hypertension, gout, and tennis synovitis of the left knee. 2. There is no competent medical evidence linking the veteran's current heart condition, hypertension, or left leg disorder with his active military service. 3. The claim for service connection for heart disease with hypertension is not plausible. 4. The claim for service connection for a left leg disorder is not plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for heart disease with hypertension is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a left leg disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background In October 1994, the veteran filed a claim for service connection for hypertension, heart disease, and left leg pain. He made no reference to post-service treatment of these conditions. Medical records from Moore Regional Hospital and R.G. Townsend, M.D., dated from October 1993 to January 1995 were associated with the claims folder. In October 1993, the veteran was admitted to Moore Regional Hospital for complaints of a retrosternal pressure sensation with radiation of the pressure into both arms. He said he was also experiencing a shortness of breath and nausea. He reported undergoing a cardiac catheterization in 1980 due to chest pains. He recalled that the cardiac catheterization showed trivial coronary artery disease. The veteran was also noted have a past medical history of hypertension and gout. Several tests and examinations were conducted. The discharge diagnoses were, in pertinent part, atypical chest pain, minimal coronary artery disease, and hypertension. Subsequent treatment records from Dr. Townsend revealed that the veteran continued to complain of atypical chest pain and receive evaluations for the same. The veteran was seen by Dr. Townsend in January 1995 for complaints of left knee pain. He said he was barely able to walk. He believed he had gout. There was no effusion or heat. All ligaments were intact. The patella tendon was exquisitely tender. The assessment was probable tennis synovitis, possible gout. There were no findings pertaining to the veteran's military service. In January 1995, the National Personnel Records Center (NPRC) reported that the veteran's service medical records were not on file. It was noted that the veteran may have had "[f]ire related service." As such, the RO was asked to have the veteran complete a NA Form 13055, Request for Information Needed to Reconstruct Medical Data. A completed NA Form 13055 was received in May 1995. Significantly, the veteran reported that he was treated for leg pain in the winter of 1958 and a knee injury in either 1958 or 1959. He said he was assigned to the 10th Field Artillery, 3rd Division and stationed in Bamburg, Germany. He also indicated that he received post-service treatment through the West Haven VA Hospital (VAH). In this regard, he stated he was treated for hypertension in the spring of 1965 and an enlarged heart in 1969 or 1970. In June 1995, the NPRC reported that there were no service medical records or Surgeon General's Office (SGO) reports on file for the veteran. The NPRC stated that it needed more details pertaining to the veteran's alleged inservice knee injury such as the month or season and year of treatment. The NPRC also indicated that it had searched the Morning Reports of the 10th Artillery, 3rd Infantry Division, C Battery from September 1, 1958 through April 1, 1959. The veteran was noted to be assigned to that unit at that time. However, the NPRC stated there were no references to any illness, injury, treatment, or hospitalization for the veteran. The NPRC said morning reports from the aforementioned unit dated between May 1, 1959 and September 1, 1959 contained no findings of the veteran's allegations. With regard to his alleged post-service treatment for hypertension and an enlarged heart, the NPRC noted that it did not store records for treatment received after a veteran was discharged from service. The veteran was afforded a VA general medical examination in August 1995. He stated he was diagnosed as having hypertension in the early 1960s and had been on medication since that time. He said he was also diagnosed as having unstable angina in 1985. He indicated that he continued to experience occasional chest pain. There was cardiac dullness half an inch to the left of the midclavicular line with point of maximal impulse at that point. Cardiac size and sounds were otherwise within normal limits. There was no evidence of peripheral vascular disease. The diagnosis was hypertensive cardiovascular disease controlled with medication. With regard to his musculo-skeletal system, the veteran reported that had had gout in his left knee and ankle since 1988. He said his last flare up of pain had been in the spring. He stated he had been asymptomatic since that time. His left knee was within normal limits with no swelling, tenderness, loss of range of motion, deformity, or dysfunction. An examination of the left ankle revealed mild generalized swelling with tenderness over the medial aspect with mild loss of motion. The diagnosis was history of gouty arthritis. Service connection for heart disease with hypertension and a chronic disability to account for left leg pain was denied in an August 1995 rating action. The RO determined there was no evidence to show that any of those conditions were incurred in or caused by the veteran's military service. The RO indicated that the veteran's service medical records were presumed to have been destroyed in a fire at the NPRC. In that regard, the RO stated a careful search for the veteran's service medical records and reports from the SGO had been conducted, but that those searches proved to be fruitless. In September 1997, the veteran was afforded a personal hearing before the undersigned at the RO. He maintained his hypertension was initially discovered inservice, and that he was placed on a special diet for the same. He denied receiving treatment for heart problems inservice. The veteran testified that he sought treatment for heart problems in the early 1960s through the New Haven VA Medical Center (VAMC). He stated he was diagnosed as having an enlarged heart at that time. Although it was not diagnosed in service, he asserted that his current heart problems were etiologically related to his inservice hypertension. The veteran testified, however, that no doctor had ever told him that his heart problems or hypertension were related to his military service. With regard to his left leg disorder, the veteran testified that he suffered from chronic pain that radiated from his knee down to his foot. He said the pain sometimes prevented him from walking. He asserted that he had been experiencing left leg pain since his military service. The veteran stated that he was told that this pain was the result of one of his legs being shorter than the other. Marching was noted to have exacerbated the pain. He indicated he was given a special shoes to help eliminate the pain. He testified that he was diagnosed as having gout in his left leg many years post-service. The matter was Remanded by the Board in January 1998 for the purpose of affording the veteran due process of law and to obtain additional factual and medical evidence. Noting that the veteran's service medical records were unavailable through no fault of the veteran, the Board stated that there was a heightened duty to assist the veteran in the development of his claim. In this regard, the Board determined that the veteran had not been properly apprised of his right to support his claim for service connection by submitting evidence from alternate sources. See VA Adjudication Manual, Manual M21-1, Part III, Paragraphs 4.25(c) and 4.29(b) (October 6, 1993). In addition to asking for evidence from "alternate" sources, the Board requested the RO to contact the veteran and ask him to provide specific information pertaining to any inservice hospitalization or treatment. If such information was received, the RO was asked to search for those records through the NPRC or any other relevant source, In a letter dated in February 1998, the RO asked the veteran to complete another NA Form 13055. He was told to provide specific information on the instances under which he had been hospitalized in service. He was instructed to provide as many details as he could remember. The RO also informed the veteran that he could submit alternative evidence to support his claims for service connection. He was told that this evidence could include, but was not limited to, statements from medical personnel, "buddy" statements, employment physical examinations, and medical evidence showing treatment shortly after discharge. To date, there is no indication that the veteran responded to this inquiry. In March 1999, the West Haven VAMC reported that there were no records pertaining to the veteran in its system. The RO was told that a search would be conducted to ascertain whether there were records that had been retired. No records were thereafter forwarded to the RO. Service connection for heart disease with hypertension and a chronic disability to account for left leg pain was denied in July 1999. The RO found the veteran had failed to present medical evidence that related his heart disease, hypertension, or chronic left leg condition to his military service. The RO also noted that the veteran had not responded to its requests for additional information regarding his alleged inservice treatment for hypertension and a left leg disorder. A supplemental statement of the case was mailed to the veteran in July 1999. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Where a veteran served 90 days or more during peacetime service after December 31, 1946, and cardiovascular disease including hypertension becomes manifest to a degree of 10 percent within 1 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, 1112, 1113, 1137 (West 1991); 38 C.F.R. § 3.307, 3.309 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Unfortunately, the veteran's service medical records are unavailable, presumably having been destroyed in a fire during the early 1970's at the NPRC. In cases where the veteran's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(a) (1999). Where service medical records are unavailable, the heightened duty to assist includes the obligation to search for alternate methods of proving service connection. See Moore v. Derwinski, 1 Vet. App. 401 (1991). "VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence." Smith v. Derwinski, 2 Vet. App. 147, 148 (1992). In that respect, the Board and the RO have made repeated attempts to locate the veteran's service medical records, but with negative results. Searches through morning and SGO reports also proved to be unsuccessful. Further, the veteran was afforded the opportunity to provide lay or medical evidence which might support his claim. A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertaining to the claim. 38 U.S.C.A. § 5107(a). The issue before the Board is whether the appellant has presented evidence of a well-grounded claim. If not, the appeal must fail, because the Board has no jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of proof of 38 U.S.C.A. § 5107 (a). Murphy v. Derwinski, 1 Vet. App. 78, 81. However, to be well grounded, a claim need not be conclusive but must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-263 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science to which the question relates are required. Questions of medical diagnosis or causation require such expertise. A claimant would not meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Id. at 495. A claim for service connection requires three elements to be well grounded. There must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the in service injury or disease and the current disability (medical evidence). The third element may be established by the use of statutory presumptions. 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 U.S. Court of Appeals for Veterans Claims (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 (1997). Here, there is no medical evidence to establish a causal link between the veteran's current cardiovascular disease or chronic left leg disorder and military service. The veteran has not offered any medical opinion that attributes his diagnosed minimal coronary artery disease, hypertension, gout, and/or tennis synovitis of the left knee to his military service. The veteran's opinion that there is an etiological relationship between his military service and his current diagnosis of these conditions does not meet this standard. Questions of medical diagnosis or causation require the expertise of a medical professional. See Espiritu. There is no evidence that the veteran has the medical background sufficient to render such an opinion. The Board recognizes that, for the limited purpose of determining whether a claim is well grounded, it must accept evidentiary assertions as true, unless those assertions are inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). The veteran is therefore competent to testify about receiving treatment for left leg injury during service. However, the veteran has failed to submit any credible medical or lay evidence to support this assertion. He was even given the opportunity to submit "alternate" evidence to support his claim. No such evidence has been received. Moreover, the first medical evidence documenting the presence of a disability of the left leg after service is not until January 1995, over 30 years after his discharge. In other words, the presence of chronic disability of the left leg during active service is not shown. There is also no evidence that the veteran suffered from a chronic heart disability, to include hypertension, in service. Despite the foregoing, as previously referenced, a claimant may still obtain the benefit of § 3.303(b) by providing evidence of continuity of symptomatology. Evidence of continuity is determined by symptoms not treatment. However, in determining the merits of a claim, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. Equally important, since a lay person is not competent to render an opinion pertaining to the diagnosis of coronary artery disease, hypertension, gout, or tennis synovitis, medical evidence is required to demonstrate a relationship between those disorders and any symptoms experienced post-service. See Grottveit v. Brown, 5 Vet. App. 91 (1993); Layno v. Brown, 6 Vet. App. 465 (1994). No such medical evidence has been submitted in this case. Based on the above, the Board concludes that the veteran has not submitted well-grounded claims, and his claims for service connection for heart disease with hypertension and a left leg disorder must be denied. In making this determination, the Board has considered the veteran's hearing testimony. While his testimony is considered credible insofar as he described his symptoms and belief in the merits of his claims, he is not competent to offer a medical opinion as to diagnosis or etiology, as noted earlier. ORDER Entitlement to service connection for heart disease with hypertension is denied. Entitlement to service connection for a left leg disorder is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals