BVA9507142 DOCKET NO. 93-11 608 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for residuals of cellulitis of the right knee. 2. Entitlement to service connection for residuals of a left ankle sprain. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for residuals of a cold injury to both hands. 5. Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service from February 1987 to January 1992. This matter arises from a rating decision of May 1992, whereby the Regional Office (RO) denied service connection for residuals of cellulitis of the right knee, residuals of a left ankle sprain, residuals of a cold injury to both hands, residuals of a low back injury, hearing loss and tinea versicolor. Pursuant to rating decision of January 1993, the RO granted service connection for tinea versicolor. Accordingly, service connection for that disability is no longer for appellate consideration. The veteran requested a hearing at the RO in his substantive appeal of September 1992. The RO notified him by letter, which was dated later that month and directed to his address of record, that a hearing was scheduled for November 1992. In November 1992, the RO made a notation in the claims folder that the veteran did not appear for the scheduled hearing. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection is warranted for various disabilities. He asserts that he suffers from residuals of cellulitis of the right knee which commenced in service after he kneeled in hydraulic acid. He also asserts that he suffered a sprain to the left ankle in service which resulted in continuing residuals. The appellant further maintains that he has hearing loss which resulted from his exposure to noise in service. With respect to the hands, the appellant claims that following the cold injury, he has experienced pain, numbness and burning when his hands are exposed to the cold. Finally, he claims that he has residuals of a low back injury that occurred during service when he fell from a truck and sustained a contusion from his rifle. 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 preponderance of the evidence is against the veteran's claim for service connection for residuals of a low back injury; it is also the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims for entitlement to service connection for hearing loss, residuals of right knee cellulitis, residuals of a left ankle sprain and residuals of a cold injury to both hands are well grounded. FINDINGS OF FACT 1. Attempts to obtain all relevant evidence necessary for an equitable disposition of the veteran's claim for service connection for residuals of a low back injury have been made by the RO. 2. The veteran's claims for entitlement to service connection for residuals of right knee cellulitis, residuals of a left ankle sprain, residuals of a cold injury to the hands and hearing loss are not accompanied by any medical evidence showing that he has those disabilities presently. 3. The veteran's claims for entitlement to service connection for residuals of right knee cellulitis, residuals of a left ankle sprain, residuals of a cold injury to the hands and hearing loss are not plausible. 4. The veteran experienced an injury to the low back in service which did not result in residual disability. 5. The veteran presently has a low back disability which is attributable to a post-service motor vehicle accident. CONCLUSIONS OF LAW 1. The appellant's claims for entitlement to service connection for residuals of right knee cellulitis, residuals of a left ankle sprain, residuals of a cold injury to both hands and hearing loss are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered in this case is whether the veteran has presented evidence of a well-grounded claim; that is, one which is plausible, with respect to each claimed disability. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim because such development would be futile. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Because a well grounded claim is neither defined by the statute nor the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy at 81. However, to be well grounded, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet.App. 261, 262-63 (1992). The United States Court of Veterans Appeals (Court) has held that evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or is possible is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A claimant would not meet the initial burden imposed by section 5017(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions or diagnoses. Espiritu at 495. Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. With chronic disease shown as such in service 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). Moreover, where a veteran served 90 days or more during a period of war and sensorineural hearing loss (an organic disease of the nervous system) becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. I. Right knee cellulitis The veteran's service medical records indicate that he was seen in July 1987 complaining of swelling and pain in the right knee area which was not related to any trauma. He first noticed swelling in the knee; however, upon medical evaluation, the symptomatology was located in the shin area. Observation revealed that the right anterior leg was erythematous, tender, swollen with fairly well demarcated margins. Examination of the right knee was normal. The assessment provided was cellulitis of the right leg. Follow-up examination several days later resulted in an assessment of resolving cellulitis. Service medical records dated thereafter contain no reference to any symptomatology involving either the right knee or leg. The veteran did report in the medical history provided in association with the separation examination that he had right anterior knee pain which began after walking one and a half miles. However, the report of the separation examination indicated that the musculoskeletal system was clinically normal. Upon VA examination in January 1993, the veteran reported that the cellulitis diagnosed in service may have been related to his having kneeled in hydraulic fluid. He stated that he did not have any recurrences of cellulitis after the initial infection. Physical examination revealed that there was no redness, swelling or tenderness. The diagnosis was history of right knee cellulitis. In this case, the veteran has provided his opinion that he presently has residuals of right knee cellulitis. As noted above, lay persons are not competent to offer medical opinions. Since the veteran is not a health care professional, the opinion proffered is beyond his competence to make. In sum, he has not submitted any medical evidence supporting his contentions. The sole medical evidence dated post-service tends to show that the veteran has no present disability of the right knee. The Court has held that Congress specifically limited entitlement for service-connected disease or injury to cases where disability resulted. There can be no valid claim if the evidence does not show that there is a present disability. 38 U.S.C.A. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Accordingly, the veteran has not met the initial burden of presenting evidence of a well-grounded claim imposed by 38 U.S.C.A. § 5107(a). In the absence of a well-grounded claim, there is no duty to assist him further in the development of this claim. II. Left ankle sprain In May 1989, the veteran was injured when his foot caught in a hole causing him to fall backwards. Observation revealed some swelling and tenderness on the exterior left side above the ball of the ankle. X-ray result indicated that there was no fracture. The diagnostic impression was first degree ankle sprain. The left ankle was evaluated as clinically normal upon separation examination, and the veteran did not report in the contemporaneous medical history form that he had any difficulty with the left ankle. Upon VA examination in January 1993, the diagnosis was history of ankle sprain. The veteran reported that he strained his ankle playing football in service. He stated that the ankle healed; and he did not have significant problems attributable to that injury at the present time. Physical examination revealed that he had no redness, tenderness or swelling and the ligaments were stable. Again, the sole evidence supporting the veteran's claim is his opinion that he presently has residuals of a left ankle sprain. However, he is not competent to provide a medical diagnosis as a lay person. Furthermore, he has not submitted any medical evidence supporting his contention that he has such residuals. To the contrary, the VA examination report shows that the left ankle is clinically normal. Since a present disability is not shown, the veteran has not met the initial burden of presenting evidence of a well-grounded claim imposed by 38 U.S.C.A. § 5107(a). Brammer at 225. Accordingly, there is no duty to assist him further in the development of this claim. III. Hearing Loss Reference audiogram results dated in January 1989, October 1989 and August 1991 did not result in a diagnosis of hearing loss. Moreover, upon separation examination, audiometry testing did not result in a diagnosis of hearing loss. Upon VA audiometry examination in January 1993, the assessment was that hearing was within normal limits. While the veteran asserts that he presently has hearing loss as a result of noise exposure in service, recent medical evidence shows that his hearing is within normal limits. Since the central issue with respect to this claim is whether or not the veteran presently has hearing loss, a medical diagnosis is required to render the claim well grounded. The veteran's opinion that he has hearing loss is insufficient to render the claim well grounded since he is not an expert in medical matters. In the absence of a medical diagnosis of hearing loss, the veteran has not presented evidence of a well-grounded claim. Brammer at 225. IV. Cold injury to the hands The veteran's service medical records are entirely silent with respect to any treatment or symptomatology representative of a cold injury to the hands. Upon separation examination, both the veteran's musculoskeletal and neurological systems were evaluated as normal. Moreover, he did not report in the medical history form that he had suffered any residuals from a cold injury to the hands. Upon VA examination in January 1993, the veteran reported that he suffered a cold weather injury to his hands in either November of 1988 or 1989. It appears that this may be his own assessment as he only said that he had very cold hands at that time. There is no evidence that he received medical treatment for frost bite during service as service medical records are completely negative for any pertinent reference to such a condition and the veteran has never indicated that he was, in fact, treated during service. Present symptomatology included pain, burning and tingling when exposed to the cold. Physical examination revealed that he had good radial and ulnar pulses, with normal capillary refill. The diagnosis was history of cold weather trauma to the hands. This claim also fails at the minimum threshold since there is no medical diagnosis of record supporting the veteran's opinion that he frostbite in service or that he has a present disability of the hands as a result of a cold injury. While he attributes various symptoms to cold weather trauma, he is not competent to make that conclusion. See Grottveit and Espiritu. The current diagnosis was by history only, or in other words, there were no current objective findings of disability. Accordingly, the claim is not well grounded, Brammer at 225, and there is no duty to assist the veteran in the development of facts pertaining to this claim. V. Low back disability With respect to this claim, the veteran satisfied the threshold requirement of presenting a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he set forth a claim which was plausible. The Board is also satisfied that all relevant evidence has been properly developed, and that no further assistance is required to comply with the VA's duty to assist as mandated by 38 U.S.C.A. § 5107(a). The veteran did not indicate during the VA medical examination of January 1993 that he had been treated or evaluated for that condition since discharge. The Board notes that the examiner reported that he did not have the claims folder available at the time of the examination. Ordinarily, another examination would be called for in order that the examiner have access to the entire history of the condition. Shoemaker v. Derwinski, 3 Vet.App. 248, 255 (1992); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). However, in this case, the only historical medical evidence of record consists of the service medical records. The veteran accurately reported the contents of the service medical records to the examiner. Therefore, the examiner would not obtain further information even if he had the claims folder. Under such circumstances, additional VA examination is not necessary to comply with the duty to assist. The veteran's service medical records reveal treatment for an injury to the low back. In October 1988, the veteran was seen complaining of pain in the lower side of the back which began after his rifle hit him there and caused him to fall awkwardly from the truck he was exiting. In the process, he twisted the lower back. He reported no prior back problems. Observation revealed that the affected area was red with restricted motion, but no swelling. The mid-back was tender on either side of the spine. The diagnostic assessment was rule out muscle contusion. Upon separation examination, no defects with respect to the back were noted either from a bony pathology or a neurological standpoint. Again, the veteran reported no symptomatology indicative of a back disability in the contemporaneous medical history. The diagnosis provided in the January 1993 examination report was history of low back contusion with subsequent severe L2 injury with surgery. The veteran related the story of his inservice injury and also reported that his back got better after conservative treatment. Following service, the veteran was involved in a motor vehicle accident, whereby he shattered L2 and treatment included the surgical placement of two Harrington rods. Examination of the back revealed that he had surgery on the low back and that he had an obvious bony deformity in the L2 area consistent either with a "wad" in the back or a bony abnormality. The veteran's statements make clear that he believes he has a present back disability which is attributable to the injury which occurred during service. However, the present diagnosis of his low back condition is history of contusion with subsequent severe L2 injury. Accordingly, the examiner found no residuals attributable to the incident which occurred in service. The Board has noted the veteran's assertions to the effect that he presently has residuals of the inservice injury; however, a medical diagnosis to that effect is not of record. The veteran as a layperson is unable to provide probative evidence of present disability. See McGinty v. Brown, 4 Vet.App. 428, 432 (1993). Moreover, the condition of the back noted in service was not chronic as the veteran was only seen on two occasions on consecutive days for treatment and evaluation of the low back injury. For the remaining three years of service, the veteran did not seek treatment for alleged residuals of the low back injury. Accordingly, continuity of symptomatology would be required for a grant of service connection. However, in the year following service, the medical evidence does not show continuity of the symptomatology evidenced in service. Therefore, the preponderance of the evidence is against the veteran's claim for entitlement to service connection for a disability of the low back. ORDER The veteran's appeal with respect to claims for entitlement to service connection for residuals of right knee cellulitis, residuals of a left ankle sprain, residuals of a cold injury to the hands and hearing loss is dismissed. The veteran's appeal with respect to entitlement to service connection for residuals of a low back injury is denied. C.W. SYMANSKI 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.