Citation Nr: 0003910 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-21 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a disability of the knees. 2. Entitlement to service connection for residuals of head and facial injuries. 3. Entitlement to service connection for a respiratory disability claimed as sinusitis/bronchitis. REPRESENTATION Appellant represented by: AMVETS INTRODUCTION The veteran retired from active duty in December 1994 after having completed more than 20 years of active military service. The veteran brought a timely appeal to the Board of Veterans' Appeals (the Board) from a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. FINDINGS OF FACT 1. The claim of entitlement to service connection for a disability of the knees is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim of entitlement to service connection for residuals of head and facial injuries is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. The claim of entitlement to service connection for a respiratory disability claimed as sinusitis/bronchitis is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a disability of the knees is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim of entitlement to service connection for residuals of head and facial injuries is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The claim of entitlement to service connection for a respiratory disability claimed as sinusitis/bronchitis is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria Service connection may be granted for a disability resulting from personal injury or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). 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). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A threshold question to be answered is whether the veteran has presented evidence of a well grounded claim; that is, a claim that is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by supporting evidence. An allegation alone is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be evidence of a current disability, usually shown by a medical diagnosis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); (2) There must also be competent evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); and (3) There must be competent evidence of a nexus between the in-service injury or disease and the current disability. Such a nexus must be shown by medical evidence. Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91. 93 (1993). In determining whether a claim is well grounded, the Board is required to presume the truthfulness of the evidence. Robinette v. Brown, 8 Vet. App. 69, 77-8 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis Section 5107 of title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that a claim is well grounded; that is, that the claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that her claims for service connection for a disability of the knees, residuals of head and facial injuries and a respiratory disability claimed as sinusitis/bronchitis are not well grounded and must be denied. The threshold question that must be resolved is whether the veteran has presented evidence of a well-grounded claim, that is, that either claim is plausible. In view of the evidence, the Board finds that the veteran has not met this initial burden and that as a result there is no further duty to assist her in the development of the claims. The RO sought to ensure the veteran was afforded due process but gave no indication or impression that the claims were well grounded. She was examined in connection with her numerous claimed disabilities. However, the development asked for was consistent with that due in the preliminary development under the circumstances to insure due process. No pertinent evidence has been reported since notice was given to the veteran and her representative that the appeal was being transferred to the Board. Therefore, the Board finds that no additional assistance is required at this time. Stegall v. West, 11 Vet. App. 268 (1998); Robinette v. Brown, 8 Vet. App. 69, 77 (1995). In connection with the development of the claim, the Board observes that the RO has obtained an adequate record. The records that have been produced are comprehensive and permit an informed determination of the issues at hand. The essential elements of a well-grounded claim are evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence depending on the circumstances), and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran's initial claim for service connection was filed with the RO in late 1995 nearly a year after service and therein she did not mention current treatment for any of the claimed disabilities. The Board must point out that the claim lacks medical diagnosis of current disability, which is critical to a well grounded claim, and the legal standard would not create an exception to that requirement in this case. See, e.g., Voerth v. West, 13 Vet. App. 117 (1999). Concerning a disability of the knees, there is a record of injury in service in 1986 with the objective evaluation showing full range of motion and tender patellar ballottement. However, the assessment of traumatic chondromalacia was not repeated. A medical examination in ate 1992 was unremarkable and after injury of the left knee in early 1994 an examination was reported as normal. Although the separation examination in 1994 mentions a history of arthritis, the clinical evaluation did not report it. Nor was a disability of the knees found on VA examination. There was no tenderness or swelling and normal range of motion as described in 38 C.F.R. § 4.71. The impression of knee pain was linked to a service-connected disability of the feet not a knee disability. Subsequent medical evaluations in 1997 and 1998 did not mention a chronic disability of the knees. Regarding residuals of facial injury, there is a record of injury to the face in early 1993 as claimed by the veteran when she ran into a glass door. The record shows bleeding from the right nostril but no septum hematoma or facial tenderness. The impression was soft tissue injury. Follow- up evaluation about two weeks later found no problem since the injury being reported and no airway obstruction or change in appearance. The impression was no change in function or appearance since injury. The elaboration of medical history on the separation examination mentioned headaches and nasal deformity but the clinical evaluation reported normal head and face. The recent VA examination found the head, ears, eyes, nose and throat unremarkable and the examiner reported no visible scars of the face. The diagnosis was history of facial laceration with no residual problems. As for claimed sinusitis/bronchitis, there is a record of upper respiratory complaints beginning in the mid 1970's that were assessed as upper respiratory infection. The acute bronchitis verus pneumonia in mid 1997 showed pneumonia found on chest x-ray. In the 1980's she was seen several times for complaints that included cough and runny nose or nasal congestion but no diagnosis of chronic sinusitis or bronchitis was reported. Viral rhinitis was mentioned on one occasion in mid 1992, but medical examination several months later in late 1992 found normal sinuses and no pertinent history of symptoms. The separation examination in 1994 showed normal sinuses on the clinical evaluation and there was no history of sinusitis. On the VA examination in early 1996, the examiner found clear lungs to auscultation and percussion and an unremarkable ear nose and throat examination. The assessment of rare bronchitis and sinusitis currently asymptomatic does not appear to be a diagnosis of chronic disability. A VA examiner in May 1996 also found clear lungs and the upper respiratory symptoms of a month duration noted in May 1997, more than two years after service were assessed as an allergic manifestation. It does not appear that chronic sinusitis or chronic bronchitis was reported. A VA examiner in mid 1998 noted that she did not indicate any change in her health status. Where the determinative issue involves causation or a medical diagnosis, as is the case in the veteran's claims, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting her lay opinion because she is shown to be a medical health professional with the training or expertise in diagnosis of disease. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, the veteran's lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well-grounded claim, Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), her lay assertions on matters of medical causation or etiology would not be entitled to any favorable presumption in the well-grounded determination. In summary, critical elements missing are current evidence of chronic knee or sinus disability or ascertainable residuals of facial injury and nexus to service, which in this case requires probative medical evidence to well ground the claims. The veteran's assertions regarding causation are not competent and of no evidentiary value to well ground the claims as she does not profess to have any competence in diagnosis of disease, her military service as an occupational therapist notwithstanding. Grottveit, supra. The Board considered and denied the veteran's claims on the same grounds as the RO, which denied the claims as not well grounded. The RO accorded her no greater consideration than her claims in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board further finds that the RO has advised the appellant of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any post service medical evidence that has not already been requested and/or obtained that would well ground the claims for service connection for a disability of the knees, residuals of head and facial injuries or a respiratory disability claimed as sinusitis/bronchitis. 38 U.S.C.A. § 5103(a) (1999); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the veteran has not submitted a well grounded claim of entitlement to service connection for a disability of the knees, residuals of head and facial injuries or a respiratory disability claimed as sinusitis/bronchitis, the doctrine of reasonable doubt has no application in her case. ORDER Service connection for a disability of the knees is denied. Service connection for residuals of head and facial injuries is denied. Service connection for a respiratory disability claimed as sinusitis/bronchitis is denied. Mark J. Swiatek Acting Member, Board of Veterans' Appeals