Citation Nr: 0006312 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 96-31 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The veteran served on active duty from June 1982 to May 1985. This case initially came before the Board of Veterans' Appeals (Board) from a rating decision of December 1994 from the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for a bilateral knee disability and a back disability. In December 1997, the Board remanded this case to the RO for additional development. In May 1999, upon finding that the matter had not been sufficiently developed, the Board remanded this case a second time to a VA examiner to review the claims file and forward a medical opinion regarding the etiology of the veteran's claimed disorders. In an August l0, 1999 supplemental statement of the case, the RO provided notice of continued denial of service connection for a bilateral knee disability and back disability following additional development and consideration of the issue, as requested by the Board in its May 1999 remand. This matter is now returned to the Board for further appellate consideration. FINDINGS OF FACT 1. No medical evidence has been submitted to show that the veteran is currently suffering from a bilateral knee disorder or back disorder, which began during active duty, or is otherwise causally or etiologically related to service. 2. The veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claims for service connection for a bilateral knee disorder and a back disorder are plausible. CONCLUSION OF LAW The claims of entitlement to service connection for a bilateral knee disorder and a back disorder are not well- grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to service connection for a bilateral knee disability and a back disability. He specifically alleges that he began having problems with both knees and his back during service, and that he has continued to have problems with his back and knees since service. The veteran's representative asserts that the July 1999 VA examination was inadequate because it did not address whether a preexisting condition was aggravated by service. The law provides that "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." 38 U.S.C.A. § 5107(a) (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). In order for a claim to be well grounded, there must first be competent medical evidence of a current disability; second, there must be an incurrence or aggravation of a disease or injury in service shown in either competent lay or medical evidence; third, there must be competent medical evidence showing a nexus between the current disability and the in- service incurrence or aggravation of a disease or injury. Caluza v. Brown 7 Vet. App. 498 (1995). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19 (1993). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In addition, service connection may also 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). Congenital or developmental defects, as such, are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). Such conditions are part of a life-long defect, and are normally static conditions which are incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990), 55 Fed Reg. 43253 (1990). A disability will be presumed to preexist service upon discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service. 38 C.F.R. § 3.303(c)(1999). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). Clear and unmistakable evidence, either obvious or manifest, is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. These include medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (1999). Aggravation is not conceded where the disability underwent no increase in severity on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (1999). The report from the October 1981 entrance examination revealed a normal physical examination of the spine and lower extremities and the report of medical history revealed no complaints referable to the back or knees. Service medical records from June 1983 reflect that the veteran was treated for right knee pain after running eight miles, and was assessed with right knee pain due to stress. Service medical records also reflect that the veteran was treated in October 1983 for pain in the left knee after running and was diagnosed with muscle strain of the left knee. He was subsequently diagnosed with tendonitis of the left knee in October 1983, after the pain persisted. A service medical record from June 1984 reveals that the veteran was treated for mid to low back pain after lifting weights, and was diagnosed with muscle strain of the lumbosacral region. The veteran's May 1985 separation examination was negative for any findings of back or knee problems or complaints of such problems. On VA examination in September 1994, the veteran complained of pain between the scapulae and upper lumbar spine area and of bilateral knee pain mainly located about the patella circumferentially. Examination of the back revealed scoliosis to the right in the lower lumbar spine area, with some questionable slight tenderness in the upper lumbar area, with no atrophy of calf or thigh, no spasm of the paraspinous muscles, and a moderately restricted range of motion. Examination of the knees revealed them to be slightly tender under both patella and mainly the medial facets, with no ligamentous laxity, negative anterior cruciate sign, no swelling, no crepitus and full range of motion. The diagnoses were chronic lumbar spine sprain with scoliosis, mild; chondromalacia of the patella, very mild. No opinion is offered regarding causation of these diagnoses. Hand written notes from a general medical examination also dated in September 1994, offered diagnoses of stiffness of muscles of the cervical, middle and lower back and an opinion that symptoms were exaggerated, while both knees revealed no objective findings of pain. These notes offered no opinion regarding causation. At his July 1995 hearing, the veteran testified that he has had problems with both knees since he was treated inservice. He denied having medical treatment for his knees since his discharge. He testified that he received chiropractic treatment for his back for one month in 1987. The accredited representative indicated that an attempt should be made to locate these chiropractic records, which are not currently associated with the claims file. Pursuant to the Board's December 1997 remand, the RO sent the veteran a letter in January 1998, requesting the veteran provide names and addresses of medical providers and to sign and return an authorization for release of medical information. The veteran did not respond to this letter. The report from a July 1999 VA examination and records review, conducted pursuant to the Board's June 1998 and May 1999 remands included a history given of the veteran having had back pain since 1982 when he was lifting weights in the service. A history of the back pain eventually resolving was given. A history of treatment for pain and tendonitis of his knees in the service, with some chondromalacia was also noted. This too, was noted to have resolved, and in his discharge papers of May 13, 1985 he reportedly stated that he was in good health, with no complaints and was taking no medications. Physical examination showed the veteran to be tender in between his scapula and upper thoracic spine. No spasm was evident, but he had point tenderness or trigger points in the area about C4. Range of motion was 70 degrees flexion; 20 degrees extension; right and left bend 30 degrees and right and left rotation 30 degrees. He could heel and toe walk without difficulties and straight leg raise was negative. Other findings regarding the back were unremarkable. Examination of the knees showed a full range of motion bilaterally, with no swelling, deformity and some tenderness on both patella. X-rays of the lumbar spine and knees were negative. The diagnoses rendered were chronic lumbar sprain and chondromalacia of the patella, mild at present. The opinion given was that in view of his history, in conjunction with the 1985 signed statement (that he was in good health on the separation examination) and in light of the review in 1994 that showed he did not have a complaint relative to his back or knees on discharge, it was felt that the condition he has now is probably not related to his injuries inservice. Regarding the veteran's claimed back disorder, the Board is cognizant that the RO in its December 1994 rating, continuing through the September 1999 supplemental statement of the case, has determined the veteran's back disorder included both a lumbosacral strain and scoliosis. The scoliosis was determined to be a constitutional or developmental abnormality present since birth, which would have developed with or without entry into military service in the December 1994 rating. The September 1999 supplemental statement of the case determined that the scoliosis preexisted service, and was not aggravated by service. The Board observes that there is no medical evidence to support either of these conclusions drawn by the RO regarding the scoliosis. There is no medical evidence showing that a scoliosis preexisted service and service medical records did not include any findings of scoliosis. Nor was a scoliosis shown to be present in the July 1999 VA examination; to the contrary, X-rays of the spine were negative. The only finding of scoliosis was shown in September 1994, and no medical opinion was given regarding whether this postural abnormality was indeed a constitutional deformity or could have been caused by other means. The veteran's representative asserts that the July 1999 VA examination was inadequate because it did not address whether a preexisting condition was aggravated by service. Although the evidence does not show a scoliosis to preexist service, even assuming arguendo that one did preexist service and was not a constitutional deformity, there is no evidence to support a presumption of aggravation in this instance under 38 C.F.R. § 3.306 (1999). Aggravation is not shown in this instance, because the overall evidence reveals that the scoliosis underwent no increase in severity on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (1999). Thus service connection is not shown to be warranted for a back disorder of scoliosis, based on aggravation. The Board finds that the claims for service connection for a bilateral knee disorder, consisting of chondromalacia and the back disorder consisting of lumbosacral strain are not well grounded. The evidence of record, including the July 1999 VA examination's opinion, strongly indicates that the inservice injuries to the back and knees were acute and transitory and resolved without residuals. While the veteran is shown to currently have bilateral knee problems and a back problem, the evidence, including the July 1999 medical records review, revealed no evidence of a link between current knee and back pathology and any knee and back problems demonstrated inservice. As previously pointed out, all three prongs of Caluza, supra, must be satisfied in order for a well-grounded claim to exist. The third requirement has not met, as the record lacks competent medical evidence showing a nexus between any current bilateral knee and back disorders and service. For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). Nevertheless, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In this case, competent medical evidence has not been submitted linking any of the veteran's current back or knee pathology to service. Under these circumstances, the Board concludes that the veteran has not met the initial burden of presenting evidence of well-grounded claims for service connection for his claimed back and knee disorders, as imposed by 38 U.S.C.A. § 5107(a). The claim, therefore, must be denied. And since the veteran has failed to present well grounded claims for service connection for the claimed back and knee disorders, VA has no duty to assist him in the development of facts pertaining to the claims. Although the RO did not specifically state that it denied the veteran's claims on the basis that they were not well grounded, the Board concludes that this error was not prejudicial to the claimant. See Edenfield v. Brown, 8 Vet. App. 384 (1995) (deciding that the remedy for the Board's deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error). While the RO denied service connection on the merits, the Board concludes that denying the claims because the claims are not well grounded is not prejudicial to the appellant, as the appellant's arguments concerning the merits of the claims included, at least by inference, the argument that sufficient evidence to establish a well-grounded claim is of record. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claims are well grounded. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). Where a claim is not well grounded it is incomplete, and VA is obligated under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his or her application. Robinette v. Brown, 8 Vet.App. 69, 77-80 (1995). In this case, the RO informed the appellant of the necessary evidence in the statement of the case. The discussion above informs the appellant of the types of evidence lacking, and which he should submit for a well grounded claim. Unlike the situation in Robinette, the appellant has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, might make the claims well grounded. ORDER The claim for service connection for a bilateral knee disorder is denied as not well grounded. The claim for service connection for a back disorder is denied as not well grounded. A. BRYANT Member, Board of Veterans' Appeals