Citation Nr: 0007971 Decision Date: 03/24/00 Archive Date: 03/28/00 DOCKET NO. 94-21 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals of a right tibia stress fracture, claimed as secondary to service- connected residuals of a hysterectomy. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from November 1975 to November 1979, and separation records reveal that she served an additional six years and nine days of active duty. The instant appeal arose from an October 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Atlanta, Georgia, which denied a claim for service connection for a stress fracture of the right tibia. This case was remanded by the Board of Veterans' Appeals (Board) in April 1996 and in January 1999 for further development. FINDING OF FACT The medical evidence of record does not show a current diagnosis of osteoporosis or any current residuals of a right tibia stress fracture. CONCLUSION OF LAW The claim for service connection for residuals of a right tibia stress fracture is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends, in substance, that service connection is warranted for residuals of a right tibia stress fracture, which she asserts resulted from her service-connected residuals of a hysterectomy. The service medical records show that the veteran underwent a hysterectomy in service in 1978. She contends that her in-service hysterectomy resulted in decreased estrogen which, in turn, led to weakened bones and, eventually, a stress fracture of the tibia. VA treatment records show that she was diagnosed with a stress fracture of the right tibia in April 1991. Under 38 U.S.C.A. §§ 1110, 1131, compensation will be provided if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). As the veteran has only contended that service connection for residuals of a right tibia stress fracture is warranted on a secondary basis, the Board will not address whether service connection for residuals of a right tibia stress fracture is warranted on a direct basis. Before service connection may be decided, however, the initial question for resolution is whether the veteran has submitted a well-grounded claim in accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990). "[I]n order for a claim to be well grounded, there must be competent evidence of a 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 disease or injury and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498, 506 (1995)(citations omitted). Only if the claimant submits a well-grounded claim does VA have the duty to assist her in developing the facts pertinent to that claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477 (1999). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In this case, the Board finds that the claim is not well- grounded as there is no medical evidence of a current disability involving residuals of a right tibia stress fracture. The veteran's lay statements that she currently suffers from residuals of a right tibia stress fracture are not competent to establish that medical fact for the purposes of well grounding her claim. Hicks v. West, 12 Vet. App. 86 (1998). An October 1996 VA examination report diagnosed "[h]ealed stress fracture, right tibia." No residuals of the right tibia stress fracture were identified. A May 1997 VA examination diagnosed "[p]rior stress fracture of the right tibia, now healed, with no residual problems." A December 1997 written statement by the Chief of the Endocrine Section at the VA Medical Center, who was also an Associate Professor of Medicine at Emory University School of Medicine, stated that the veteran "does not have osteoporosis" based on diagnostic studies and clinical evaluation. Finally, J. Hoffman, M.D., who performed an April 1999 examination at the request of VA and who reviewed the medical record, stated, "I do not feel that [the veteran] has sustained, however any permanent sequela from the stress fracture." As the veteran has not presented medical or competent evidence which would justify a belief by a fair and impartial individual that it is plausible that she currently has residuals of a right tibia stress fracture, that claim must be deemed not well grounded and therefore denied. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (absent "proof of a present disability[,] there can be no valid claim"); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board views its discussion above sufficient to inform the veteran of the elements necessary to complete her application for service connection for residuals of a right tibia stress fracture. Robinette v. Brown, 8 Vet. App. 69 (1995). Whereas the Board has determined that her claim for service connection for residuals of a right tibia stress fracture is not well grounded, the VA has no further duty to assist her in developing facts in support of that claim. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Although where a claim is not well grounded the VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, the VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete her application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Here, she has not made the VA aware of specific, additional evidence that is not of record which could serve to well ground her claim. As the veteran has not submitted the necessary medical opinion or other evidence in support of this claim, it must be considered not well grounded. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. §§ 3.312, 20.101 (1999). Since this claim is not well grounded, it must, accordingly, be denied. Grottveit v. Brown, 5 Vet. App. 91 (1993); Boeck v. Brown, 6 Vet. App. 14 (1993). ORDER A claim for entitlement to service connection for residuals of a right tibia stress fracture, claimed as secondary to service-connected residuals of a hysterectomy, is denied. C. P. RUSSELL Member, Board of Veterans' Appeals