Citation Nr: 0006124 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 95-29 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to service connection for a blood disorder to include beta thalassemia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from February 1982 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) from a November 1993 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). That decision denied entitlement to service connection for bilateral ankle disorder and a blood disorder. The Board remanded the case to the RO for additional development in July 1997. At that time the issues developed for appellate consideration were entitlement to service connection for a bilateral ankle disorder and entitlement to service connection for a blood disorder. In a rating decision dated in October 1999, the RO granted service connection for a right ankle disorder, and assigned a 10 percent disability rating. The grant of service connection for a right ankle disorder is considered a full grant of the benefit sought with regard to that issue. Grantham v. Brown, 114 F.3d 1156 (1997). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the veteran has a current left ankle disability attributable to service. 2. There is no competent evidence that the veteran has current disability from beta thalassemia or other blood disorder. CONCLUSIONS OF LAW 1. A left ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). 2. The claim for service connection for a blood disorder to include beta thalassemia is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Available service medical records show that the veteran was seen for complaints of shin pain in August and December 1991. In December 1991, the veteran was noted to have tenderness over the spine of a tibia. An X-ray examination revealed no fractures. The assessment was shin splints. A report dated in January 1993 from National Health Laboratories show a veteran's hemoglobin level to be 13.3. The veteran was accorded a VA examination in May 1993. At that time, he reported that during service he fell inside a tank and hit both ankles which became swollen and painful. He reported that since the incident he has experienced pain off and on with increased pain at times, aggravated by prolonged standing and walking. On examination of both ankles, there was no deformity or swelling. There was tenderness at the lateral and medial malleolus. There was no evidence of instability at the ankle joints. The ligaments were intact. The range of motion was as follows: ankle dorsiflexion was to 10 degrees and plantar flexion was to 30 degrees. X-rays were normal. The diagnosis was history of ankle sprain with recurrent pain and discomfort. Clinical laboratory testing revealed a hemoglobin level of 13, which was abnormally low. The lymphatic and hemic systems were normal. The diagnosis was normal, healthy adult male. VA radiographic report echogram abdomen dated in May 1993 show the veteran's reported clinical history as follows: abnormal liver function, negative hepatitis panel and nonalcohol drinker. It was noted that the veteran had beta thalassemia. The diagnosis was normal abdominal ultrasound. The veteran was accorded a VA examination in December 1997. It was noted that the veteran was discharged from service in 1992 and had a Persian Gulf examination, it was noted that beta thalassemia was found on a routine Gulf War examination. There were no reported symptoms of weakness or shortness of breath or fatigue. There were no reported symptoms of cholecystitis, pancreatitis, or hepatitis. The veteran denied any rectal abnormalities. There was no pain, discomfort, constipation, or rectal bleeding, at least for several years. The diagnosis was beta thalassemia diagnosed on routine Persian Gulf examination in 1992. It was noted that veteran was asymptomatic. On podiatry examination, the veteran reported that he had injured his left ankle during service. Range of motion of the left ankle was normal. The diagnosis was minimal evidence of left ankle pathology. Clinical laboratory test revealed a hemoglobin level of 13.7, which was noted to be abnormally low. The veteran was accorded a VA examination in March 1998. It was noted that the examination was to determine whether or not degenerative joint disease of the left ankle existed. The examiner commented that the radiographic reports showed no significant arthritis of the ankle, but the veteran was given the diagnosis of minimal evidence of left ankle pathology. The veteran reported that during service he experienced several injuries to his ankles due to jumping off tanks. He reported pain with activities, more on the right than the left. He experienced occasional sensation of instability. On examination, bilateral flat feet were noted. Range of motion was normal. There was no evidence of instability. Drawer tests were negative for instability. X-rays of the left ankle were negative and there was no evidence of degenerative arthritis. The diagnosis was normal left ankle examination (including X-rays). The examiner noted that the veteran did not have any objective evidence of significant injury of degenerative arthritis in the left ankle. In October 1998, the RO requested that a specialist in hematology provide an opinion as to whether beta thalassemia was a defect or disease, and if a disease, did it have its onset in service (1982-1992), or was it aggravated beyond its natural progression during service. In a November 1998 response, the reviewer reported that the veteran had a hemoglobin electrophoresis result in April 1993 which showed that he had increased level of hemoglobin level (5 percent) consistent with beta thalassemia. His last hemoglobin level taken in December 1997 was 13.7 g/dl which was consistent with thalassemia trait. He reported that beta thalassemia was a hereditary disease. The examiner commented that individuals with beta thalassemia trait were usually asymptomatic from the disorder unless there were other hemoglobinopathies associated with it. The examiner further commented that in view of the veteran's hemoglobin level, it was unlikely that he had a combined hemoglobinopathy. Pertinent Law and Regulations The threshold question to be answered is whether the veteran has presented evidence of a well grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail and the Board has no duty to further assist him with the development of his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or during an applicable presumption 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 Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Alternatively, service connection may be established under § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Brewer v. West, 11 Vet. App. 228, 231 (1998). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Sacks v. West, 11 Vet. App. 314, 315 (1998); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes for 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. King v. Brown, 5 Vet. App. 19, 21 (1993). In general, service connection will be granted for disabilities incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment. Clear and unmistakable evidence is required to rebut the presumption. 38 U.S.C.A. § 1111. Venerson v. West, 12 Vet. App. 261 (1999). Only such conditions as are recorded in examination reports are to be considered as noted, and the veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury. Paulson v. Brown, 7 Vet. App. 466, 470 (1995); 38 C.F.R. § 3.304(b). The veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107(b) (West 1991), Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When the evidence supports the claim or is in relative equipoise, the veteran prevails. Gilbert, 1 Vet. App. at 56. Further, where the "fair preponderance of the evidence" is in favor or against the claim, the benefit of the doubt rule has no application. Id. VA's General Counsel has held that service connection may be granted for hereditary diseases which first manifest in service, or which pre-exist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90 (O.G.C. Prec. 67-90) (1990); 55 Fed. Reg. 43253 (1990). The General Counsel specifically held that the mere fact that a disease is hereditary, does not rebut the presumption of soundness. Analysis Left ankle disorder The veteran has reported that during service he sustained an injury to his left ankle jumping off a tank. He is competent to report this injury. He is also competent to report continuity of symptomatology since the incident. The report of the May 1993 orthopedic examination provides competent evidence of a current diagnosis of disability. That examination also provides competent evidence of a diagnosis of current disability. The current disability was attributed to a history of ankle sprain. Inasmuch as the only reported ankle sprain occurred in service, the diagnosis serves to provide competent evidence of a nexus between the current diagnosis and service. See Hodges v. West, No. 98-1275 (Jan. 12, 2000) (holding a nexus was supplied in a claim for service connection for traumatic arthritis, where there was current diagnosis of that disability and the only reported trauma had occurred in service). Accordingly, the Board finds that the claim for service connection for a left ankle disability is well grounded. Once it is determined that the claim is well grounded, the claim is adjudicated on the merits. At the merits stage there must be evidence in support of each of the three Caluza elements discussed above. The analysis at the merits stage, however, is not the same as at the well groundedness stage. The credibility of the evidence is not presumed at the merits stage. Hickson v. West, 12 Vet. App. 247 (1999). While the earlier examination reports seemed to suggest that the veteran had a current disability left ankle disability attributable to service, the most recent VA examination revealed no abnormality of the left ankle, and the examiner concluded that the veteran did not have such a disability. The Board finds that the most recent finding is more probative than the earlier findings. The most recent examination report was more detailed than the earlier examination reports, and the examiner took into account the earlier examinations in finding that there was no current disability. Further, the veteran has not reported, and the record does not show, any treatment for left ankle disability. The Board notes that in the VA Form 646, the veteran's representative contends that the 1998 examiner denotes that X-rays show a small evulsion type ossicle at the tip of the lateral malleolus to the left ankle. The Board notes that the examiner notes that x-rays demonstrate a small "evulsion" type ossicle at the tip of the lateral malleolus. However, in his discussion he specifically relates the "ossicle" of bone to the right ankle. Furthermore, the diagnosis was normal left ankle examination. For these reasons the Board concludes that the preponderance of the evidence is against a finding that the veteran currently has a left ankle disability attributable to service. Blood disorder (claimed as beta thalassemia) Despite numerous attempts, VA has not been able to obtain the veteran's complete service medical records. In the absence of the service medical records, the Board has a heightened duty to explain its findings and conclusions and to consider the weight to be given the veteran's evidence. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The record shows that since service the veteran has consistently been found to have abnormal hemoglobin levels. These have been diagnosed as a hereditary disease, beta- thalassemia. As noted earlier, service connection is available for hereditary diseases under certain circumstances. However, under the provisions of 38 U.S.C.A. §§ 1110, 1131 service connection is only available for disability resulting from disease or injury incurred in service. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has defined the term "disability" as meaning an impairment of earning capacity resulting from disease or injury incurred in service or from aggravation of a pre-existing disease or injury. Allen v. Brown, 7 Vet. App. 439, 447 (1995) (en banc). In order to satisfy the requirement of a current disability, there must be competent evidence that the disability is symptomatic at the time of application for service connection. Gilpin v. West, 155 F.3d 1353, 1355-6 (Fed. Cir. 1998). In this case there is no evidence of active pathology associated with the veteran's hemoglobin level at the time of the veteran's current claim or thereafter. The veteran filed his claim in 1993, at which time he was found to be a normal, healthy adult male. Subsequently, the 1997 examiner reported that the veteran had asymptomatic beta thalassemia and specifically noted that the veteran was working regular hours and completing a full days work. The veteran has not reported any treatment for beta thalassemia. In the absence of competent evidence of current disability from beta thalassemia or other blood disease, the claim is not well grounded must be denied. ORDER Service connection for a left ankle disorder is denied. Service connection for a blood disorder to include beta thalassemia is denied. Mark D. Hindin Member, Board of Veterans' Appeals