Citation Nr: 0002364 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 95-40 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for residuals of a left knee injury. 2. Entitlement to service connection for residuals of a left ankle injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from May 1945 to August 1946 and from June 1948 to March 1950. In a June 1997 decision, the Board of Veterans' Appeals (Board) remanded the issues of entitlement to service connection for residuals of a left knee injury and entitlement to service connection for residuals of a left ankle injury to the Los Angeles, California Regional Office (RO) for additional development of the record. A review of the record reflects that additional service medical records have been obtained, to the extent possible. Thus, the case has now been returned to the Board for appellate consideration. FINDINGS OF FACT 1. Competent medical evidence of a nexus between a current left knee disability and an incident of service has not been presented. 2. Competent medical evidence of a nexus between a current left ankle disability and an incident of service has not been presented. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for residuals of a left knee injury is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for residuals of a left ankle injury is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although efforts have been made by the Department of Veterans Affairs (VA) to obtain the veteran's complete service medical records, the National Personnel Records Center (NPRC), in response to VA requests, reported the records may have been destroyed in the 1973 NPRC fire. NPRC could not confirm the existence of such records; only the fact that if they had been stored at the Records Center, they would have been stored in an area damaged by the fire. The Board realizes in cases such as these, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board's analysis of this veteran's claim was undertaken with this duty in mind. Factual Background Service medical records reflect notations of defective vision and bilateral pes planus. A diagnosis of tonsillitis was also noted. A separation examination dated in March 1950 reflects notations of moderate pes planus and a right hernia. No other defects were noted. Daily sick reports from Company "G" of the 350th Inf. Regiment dated from June 1949 to February 1950 reflect the veteran was seen for unspecified reasons on September 29, 1949, October 18, 1949, October 19, 1949, November 10, 1949, November 29, 1949, January 24, 1950, and February 8, 1950. The records do not reflect any hospitalization. An April 1989 clinical record notes that the veteran reported falling off of a bike a few days earlier. The veteran indicated that he thought some of the screws in his left ankle were loose. It was noted that there was no discoloration of the left ankle and no edema. Moderate tenderness was also noted. The record reflects a relevant impression of a contusion of the left ankle. An April 1989 radiology report of the left ankle reflects a surgical screw traversing the distal tibia at the site of a healed fracture. Post fracture deformity of the distal left fibula was noted. A conclusion of a healed fracture involving the left ankle, status post open reduction and internal fixation, was noted. A July 1990 VA clinical record reflects the veteran complained of soreness in his left hip and thigh. It was also noted the veteran had an elastic bandage on his left knee. The record reflects physical examination revealed no swelling and no hematoma. Pain and tenderness in the left knee were noted. A diagnosis of traumatic myositis of the left thigh was noted. A July 1990 radiology report of the left knee reflects an impression of no evidence of active bone or joint pathology. In an August 1997 letter to the veteran, the RO requested completion of an enclosed form regarding the veteran's disabilities. In response to the RO's request, the veteran completed the enclosed form and indicated that during service he was treated for a ski pole injury to his left knee and a hurt left ankle during ski training sometime between November 1949 and 1950 while assigned to Company G of the 350 Inf. Reg., 88th Division, in Innsbruck, Austria. Pertinent Law and Regulations Basic entitlement to disability compensation may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Service connection connotes many factors but basically 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. 38 C.F.R. § 3.303(a) (1999). 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). Certain chronic disabilities, such as hypertension, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (1999). In the alternative, service connection may be established by a continuity of symptomatology between a current disorder and service. 38 C.F.R. § 3.303(d); Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Lay observations of symptomatology are pertinent to the development of a claim of service connection if corroborated by medical evidence. See Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service-connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); 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; lay or medical evidence of incurrence or aggravation of a disease or injury in service; and competent medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). A claim based on chronicity may be well grounded if the chronic condition is observed during service, continuity of symptomatology is demonstrated thereafter and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). 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. Lay assertions of medical causation cannot constitute evidence sufficient 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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Analysis Following a thorough review of the evidence of record, the Board concludes that service connection for residuals of a left knee injury and for residuals of a left ankle injury is not warranted. Even assuming the 1949 and 1950 sick call notations were for treatment of a left knee injury and a left ankle injury, the record is silent for competent medical evidence of a nexus between the veteran's current left knee and left ankle disabilities and any incident of service. Although the veteran asserts that his current disabilities are the result of injuries sustained during 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 made it clear that a lay party is not competent to provide probative evidence as to matters requiring expertise regarding specialized medical knowledge, skill, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1994). The record does not reflect that the veteran possesses any specialized medical training or skill. Consequently, the veteran's lay assertions that his left knee condition and left ankle condition were caused by his active service are neither competent nor probative of the issues in question. While the veteran is competent to testify regarding the events that are alleged to have occurred during his active service, he is not competent to diagnose the etiology of his own disabilities. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93-95 (1993); and Clarkson v. Brown, 4 Vet. App. 565, 657 (1993). Additionally, the record is silent for complaints or treatment related to a knee or ankle disability until 1989, more than thirty years after the veteran's discharge from service. Thus, the veteran has not established continuity of symptomatology or the incurrence of a chronic disability. In the absence of competent medical evidence of a nexus between the veteran's left knee disability and an incident of service, the claim is not well grounded and must be denied. Likewise, in the absence of competent medical evidence of a nexus between the veteran's left ankle disability and an incident of service, the claim is not well grounded and must be denied. ORDER The claim of entitlement to service connection for residuals of a left knee injury is denied. The claim of entitlement to service connection for residuals of a left ankle injury is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals