BVA9502117 DOCKET NO. 92-13 227 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to secondary service connection for a cardiovascular disability. 2. Entitlement to secondary service connection for a fracture of the left fibula and tibia. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran had active military service from March 1960 to March 1964. This appeal arises from a December 1991 rating action of the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to secondary service connection for a fracture of the left tibia and fibula. Additionally, a February 1992 rating action denied secondary service connection for a cardiovascular disability. In July 1993, the Board remanded the claim for further development. While on remand, claims previously before the Board for secondary service connection for status post thrombophlebitis and pulmonary embolism and entitlement to a total rating based upon individual unemployability were granted. Therefore, those issues are not reflected on the title page. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his accredited representative assert, in essence, that the veteran has a cardiovascular disability which was caused as a result of his service-connected left hip replacement. It is also maintained that the veteran's fractures of the left fibula and tibia were proximately caused by his service-connected left knee and hip disabilities. He claims that he had instability of the left knee and hip which caused him to fall and fracture his left tibia and fibula. It is asserted that this occurred following bypass surgery in November 1990. 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 appellant has not met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for secondary service connection for a cardiovascular disability is well grounded, and that the preponderance of the evidence is against the claim for secondary service connection for a fracture of the left fibula and tibia. FINDINGS OF FACT 1. The veteran has submitted no medical evidence to the effect that his heart disability is secondary to a service connected disability. 2. The veteran's claim for service connection for cardiovascular disability as secondary to service connected pulmonary emboli is not plausible. 3. Private treatment records show that the veteran sustained a fracture of the left tibia and fibula when he fell in the hospital while using the bathroom. 4. The evidence of record does not establish that instability of the veteran's service connected left knee or hip caused the veteran to fall while hospitalized. CONCLUSIONS OF LAW 1. The appellant has not submitted a well-grounded claim for service connection for a cardiovascular disability secondary to a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.310 (1993). 2. The veteran's fractures of the left tibia and fibula were not proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. 3.310 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Secondary Service Connection for a Cardiovascular Disability The threshold question as to the issue of entitlement to secondary service connection for a cardiovascular disability is whether the veteran has presented evidence of a well-grounded claim; that is, one that is plausible. If not, the appeal must fail and there is no duty to assist him further in the development of his claim as such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). For the reasons discussed below, the Board finds that the veteran's claim is not well grounded. Under applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1131. Disability which is proximately due to or the result of service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The veteran is service connected for disabilities including pulmonary emboli, deep vein thrombosis of the left lower extremity and degenerative joint disease of the left hip; post operative left hip arthroplasty. The veteran and his accredited representative assert that the veteran's cardiovascular disability is proximately the result of his service-connected left hip replacement. The veteran maintains that after his left hip replacement, he suffered from blood clots, pulmonary emboli and vascular disturbances of the left lower extremity. It is the veteran's assertion that those vascular disabilities, for which he was later secondarily service connected, were the cause of his cardiovascular disability. A review of the record reveals that the veteran underwent a VA compensation and pension examination in October 1973. His blood pressure was 120/80. During this examination for residuals of a fracture of the left femur with arthritis and muscular atrophy and osteoarthritis of the left knee, he stated that he had a history of hypertension. However, the examiner described his pressure at that time as "perfectly normal." No cardiovascular diagnosis was provided. In July l988, the veteran was hospitalized for a total left hip arthroplasty. The final diagnosis was degenerative joint disease of the left hip. No mention was made in the hospital report of a thrombosis or embolus. The veteran was hospitalized by the VA later in July and August 1988 for pain in the left calf and popliteal region beginning one day prior to admission. He denied any cardiovascular symptoms. Physical examination revealed heart sounds were regular and no murmurs were noted. No evidence of deep vein thrombosis was noted. No cardiac diagnosis was rendered during this hospitalization. Later in August l988, he was hospitalized by the VA. The diagnoses included pulmonary emboli, right lobe and lingula. In May l989, the veteran was afforded an orthopedic examination by the VA. Blood pressure was 130/94. In June 1990, the veteran underwent a VA examination for compensation and pension purposes. He stated he had a history of a myocardial infarction and a history of hypertension. The examiner noted that the veteran had a normal Thallium treadmill test in January 1990. There was no cardiovascular diagnosis provided. In July l990, a summary of medical records was received from the Social Security Administration. It showed that the veteran was hospitalized by the VA in January l990. It was noted that an admission electrocardiogram indicated possible previous inferior myocardial damage, but a similar test in l985 was identical. It was therefore assumed that the veteran suffered inferior myocardial damage prior to l985. It was concluded that there was a high degree of suspicion regarding possible coronary artery disease. In July 1990, the veteran was hospitalized with complaints of sharp pains in between the scapula starting prior to admission. He gave a past medical history which included hypertension and questionable history of arteriosclerotic heart disease, status post myocardial infarction. A chest X-ray showed cardiomegaly, elevated diaphragm, and suspicious widening of the mediastinum. Electrocardiogram showed normal sinus rhythm, narrow Q-wave in lead III and AVF and minor nonspecific ST-T changes. The veteran's admission to the hospital was predicated primarily on a chief complaint of back pain. A CT scan of the chest showed a moderate amount of fat in the superior mediastinum, mild cardiomegaly, minimal pleural thickening and markings at the basilar area, bilaterally, more on the right. A two-dimensional echogram of the heart was performed which showed no evidence of thrombosis in the heart. The veteran's symptoms were felt to be suggestive of pulmonary embolism secondary to deep vein thrombosis. Hypertension was noted as one of the pertinent diagnoses. The clinical diagnosis which was noted but not treated was questionable history of arteriosclerotic heart disease, status post myocardial infarction, no documentation. In November 1990, the veteran was hospitalized at the Bridgeport Hospital because of severe substernal chest pain. The veteran noted several episodes the week prior to his admission which were relieved by sublingual nitroglycerin. He gave a history of prior heart disease and indicated that he had suffered from a heart attack at an unknown time. He also gave a history of multiple medical problems with a history of deep vein thrombosis and pulmonary emboli. He informed the hospital that he had problems with hypertension since 1988. In 1990, he was treated for chest pains by VA and indicated that he may have suffered a heart attack at that time. An electrocardiogram performed on admission showed evidence of an acute myocardial infarction in progress. The following day he continued to have chest pain and was transferred to Greeley Medical Center, where coronary artery bypass surgery was performed. A December 1990 letter to James Beckmann, M.D., from Michael W. Stanton, M.D., was associated with the claims folder. He made no mention as to the cause of the veteran's cardiovascular difficulties. In August 1991, the veteran had a personal hearing before a hearing officer at the RO. He claimed that, amongst other things, his cardiovascular difficulties were the result of blood clots he developed after his left hip replacement. He stated that his physician related his heart attack to his hip surgery and resulting blood clots. (Hearing transcript pp. 1-4). Pursuant to a Board remand of July 1993, the veteran underwent a VA examination in April 1994. The examiner commented that there was no evidence that the veteran's cardiovascular disease was related to any current service-connected disorder. After a thorough review of the record, it is clear that the veteran has cardiovascular disability. He claims that his recurrent pulmonary emboli, which are secondary to his left hip replacement, caused his cardiovascular disability. However, a person who submits a claim for benefits under a law administer by the Secretary has 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). The initial burden of submitting a well-grounded claim is on the shoulders of the veteran and he has not submitted sufficient evidence thereof. While the veteran claims that his cardiovascular disability is secondary to his service-connected disabilities, lay assertions of medical causation will not suffice initially to establish a plausible well-grounded claim. Moray v. Brown, 5 Vet.App. 211 (1993). Lay persons cannot provide testimony when expert opinion is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Although the veteran testified at a personal hearing before the RO that his physician told him that his cardiovascular disability was related to his left hip replacement and the recurrent pulmonary emboli which were secondary to his left hip replacement, the U. S. Court of Veteran's Appeals has held that lay assertions about what a doctor told a veteran cannot constitute medical evidence of causation/etiology of a current disability that is needed for a claim to be well grounded. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Sept. 12, 1994). Absent any medical evidence which clearly relates the veteran's cardiovascular disability to his service-connected left hip replacement or service-connected deep vein thrombosis of the left leg and pulmonary emboli. The claim is not plausible. Therefore, it is not well grounded. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). II. Entitlement to Secondary Service Connection for a Fracture of the Left Fibula and Tibia The veteran's claim is well grounded as to the issue of entitlement to secondary service connection for a fracture of the left tibia and fibula within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a plausible claim. In this regard, the issue of the circumstances surrounding the fall in question is factual in nature. All available medical records have been obtained and associated with the claims folder. The record is complete; VA has fulfilled its duty to assist the veteran in the development of his claim as mandated by 38 U.S.C.A. § 5107(a). Under applicable criteria, disability which is proximately due to or the result of service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310. The veteran's service connected disabilities include degenerative joint disease of the left hip, postoperative total left hip arthroplasty and osteoarthritis of the left knee. The left hip replacement was done in 1988. It is the veteran's contention that secondary service connection is warranted for a fracture of the left tibia and fibula as a result of his service-connected left knee and hip disabilities. He claims that, because of his instability of his service- connected left knee and hip disabilities, he fell after bypass surgery and this proximately caused his left tibia and fibula fracture. In November 1990, the veteran was hospitalized at the North Colorado Medical Center at Greeley, Colorado, for further evaluation of a post myocardial infarction angina. He noted chest pain prior to admission while hunting and walking. While hospitalized, he had coronary artery bypass surgery. He made excellent postoperative recovery. On his fourth postoperative day, he got up to go to the bathroom. As he was turning to sit on the stool, he fell when he became lightheaded and fractured his left tibia. A December 1990 letter to James Beckmann, M.D., from Michael W. Stanton, M.D., was presented and associated with the claims folder. Dr. Stanton indicated that he had evaluated the veteran approximately four weeks from his emergency single-vessel coronary artery bypass graft. He noted that hospitalization was complicated by the veteran's fall and having a tibial fracture on approximately his fourth postoperative day. In August 1991, the veteran provided testimony at a personal hearing before a hearing officer at the RO. The veteran stated that, after he got out of intensive care for his coronary artery bypass grafting in 1990, he attempted to go to the restroom and was told by a nurse who took him there to turn around and sit down. The nurse left and as he was about to sit down, he testified that he "went out" and went down and "busted my leg." (Hearing transcript pp. 4-5.) The veteran claims that his left tibia and fibula fracture was sustained as a result of a fall which occurred after he sustained instability of the left knee and hip while hospitalized in November 1990. This is not substantiated by the evidence of record. Hospital summaries of the veteran's treatment for his tibia and fibula fracture indicate that the fracture occurred when he became lightheaded during hospitalization and fell. There was no mention in the hospital record that the fall was due to his service connected left knee and hip disabilities. At the veteran's personal hearing, he commented that he "went out," and "busted my leg." The veteran's account of the injury at the time it occurred is more probative than an account made sometime later in connection with a claim for monetary benefits. Based on the foregoing, service connection for the residuals of a fracture of the left tibia and fibula secondary to instability of his service-connected left knee and hip is not warranted. ORDER The appeal as to entitlement to secondary service connection for cardiovascular disability is dismissed. The appeal as to entitlement to secondary service connection for the residuals of a left tibia and fibula fracture is denied. I. S. SHERMAN 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.