Citation Nr: 0007284 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-03 120A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for residuals of an injury to the right great toe, right ankle arthritis and a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and the appellant's former spouse ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from November 1966 to November 1968. By rating action dated in October 1997, the Department of Veterans Affairs (VA) denied entitlement to service connection for a right great toe disability and disabilities of both ankles. The veteran appealed from those decisions. In July 1999, the veteran and a former spouse testified at a hearing before a Member of the Board of Veterans' Appeals (Board) sitting in Washington, D.C. The case is now before the Board for appellate consideration. During the July 1999 hearing, it was indicated that the veteran contemplated filing a claim for service connection for fibromyalgia, but was not doing so at the hearing. That claim is not currently of record and no action based on the comments made at the hearing is indicated. FINDINGS OF FACT 1. The veteran sustained an injury to his right great toe during service, in 1968. 2. There is no medical evidence establishing any current residual disability of the inservice injury to the veteran's right great toe. 3. An ankle injury or disability was not demonstrated during the veteran's active military service. Ankle disabilities, including degenerative arthritis, were initially reported many years after the veteran's release from active duty and have not been shown to be of service origin. CONCLUSION OF LAW The veteran has not submitted well-grounded claims for service connection for a right great toe disability, right ankle arthritis and a left ankle disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered with regard to the veteran's claims is whether he has presented evidence of well-grounded claims; that is, claims which are plausible. If he has not presented well-grounded claims, his appeal must fail and there is no duty to assist him further in the development of the claims because such additional development would be futile. 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. As will be explained below, the Board finds that the claims are not well grounded. I. Background The veteran's service medical records reflect that he was seen in August 1968 after sustaining an injury to his right foot. It was indicated that the right great toe was swollen. An X-ray study of the toe was negative. He was seen later in August with a report that the toe was still painful. The veteran was again seen in September 1968 and it was indicated that he continued having pain involving the right great toe. When he was examined for separation from military service in October 1968 the veteran reported having swollen and painful joints, including the right great toe. On the medical examination report, it was indicated that the distal interphalangeal joint of the right great toe was slightly swollen. The veteran was seen later in October 1968 and it was indicated that in August 1968 he had dropped a tire on his right great toe which was followed by the appearance of pain and swelling of the proximal interphalangeal joint of the toe. He was later placed on medication with disappearance of the objective findings of swelling and redness. However, he continued to complain of pain in the injured area. It was indicated that at the time of the initial evaluation, serum uric acid and tests for the rheumatoid factor were obtained. The uric acid was normal but 2 tests were weakly positive for the rheumatoid factor, raising the question of whether the veteran had rheumatoid arthritis. His only current joint complaints consisted of pain in the proximal interphalangeal joint of the right fifth finger and right great toe, both areas of previous trauma. The only objective finding in either area was a minimal loss of extension of the proximal interphalangeal joint of the right great toe, which was probably not a result of the trauma since the veteran had previously been refused induction because the right great toe was a hammer toe. The examiner stated that the finding of a weakly reactive rheumatoid factor in the veteran was of dubious significance. The examiner felt that the veteran's persisting right great toe complaints were due to the preceding trauma in an area of preexisting joint abnormality. The clinical history and physical findings did not support a diagnosis of rheumatoid arthritis. The veteran's service medical records, including the report of his physical examination for separation from service, reflect no complaints or findings regarding an ankle injury or disability. The veteran's initial claim for VA disability benefits was submitted in November 1968. He referred to low back and right great toe problems. The veteran was examined by the VA in December 1968. Review of his records revealed that in August 1968 while changing tires, the jack fell and a tire dropped on his right great toe causing a contusion. He had been off his feet for several days. An X-ray study was negative and he was then on light duty for about a week. Because there had been a weakly positive rheumatoid factor test, the diagnosis of rheumatoid arthritis was entertained, but never established. The veteran stated that he had been turned down previously for service because of the condition of his feet, including pes cavus and hammertoes. On examination of the musculoskeletal system, various findings were made regarding the low back. Examination of the feet showed pes cavus, bilaterally with shortening of the longitudinal arches. There were beginning hammertoes, especially the great toes, bilaterally. Examination of the right great toe failed to reveal any tenderness or pain in the mid interphalangeal joint. Motion of the toe was normal. An X-ray study of the right great toe showed a very short first metatarsal (Morton's toe) and a very mild hallux valgus. No other abnormalities were present. The diagnoses included minimal residuals of a contusion of the right great toe and symptomatic congenital bilateral pes cavus with hammertoes of the great toes. There were no complaints, finding or symptoms consistent with an ankle disability recorded on the examination. By rating action dated in January 1969, service connection was denied for a right great toe disability, as well as pes cavus and hammertoes. When the veteran was examined by the VA in April 1982, he stated that arthritis had been found in the great toe of his right foot. There was a history of pain in his legs and feet all the time. He stated that that initially occurred while he was in the military service. On examination, there was normal dorsal and plantar flexion of the great toes. He had difficulty in squatting and walked with a slight limp on the right. He had difficulty rising on his heels and toes and had difficulty standing on either foot alone. There was no reference to an ankle disability. The diagnoses did not include a right great toe disability. The regional office later received a number of reports of private medical treatment of the veteran during 1991 and 1992 for various conditions, including low back pain and leg pain. When the veteran was examined by the VA in January 1997, there was weakness on dorsiflexing and plantar flexing the left great toe. The veteran had bilateral pes cavus, but could stand on his toes and heels. The diagnoses included bilateral pes cavus and plantar fasciitis of the left foot. In May 1997, the veteran submitted a claim for service connection for disabilities of the right great toe and ankles. The regional office later received VA outpatient treatment records reflecting that the veteran was seen in June 1997 with a complaint of a cyst on his left foot and discomfort involving the right ankle. Examination of the right ankle showed no erythema or edema. Additional VA outpatient treatment records reflect that the veteran was seen in January 1998 with a complaint of chronic body pain. He was again seen in June 1998 with complaints including multiple joint pain. Private medical records reflect that the veteran was observed and treated for various conditions, including low back pain and psychiatric problems from 1981 to 1993. VA outpatient treatment records reflect that he was seen in November 1997 with a complaint of chronic pain all over his body. He again complained of whole body pain in December 1997. In a June 1998 statement, George E. Artress, M.D., indicated that he had not been able to locate records on the veteran due to the fact that it had been about 14 years since he had last been seen in their office. During the July 1999 Board hearing, the veteran related that he injured both of his ankles during his military service while in basic training. He had then continued to have problems with his ankles while serving in Vietnam. He had been given pain medication. He related that he had initially received treatment for his right great toe when he had fractured the toe while stationed at Fort McPherson in Georgia. He had had a flat tire and was jacking up the car and the jack fell and struck his toe, breaking the toe. He had had treatment for the right great toe disability after service by a private physician, but was unable to obtain any records of the treatment. He had also been treated at the VA Medical Center in Decatur, Georgia. His ankles currently swelled and were painful. He was currently receiving treatment for his ankle conditions at the VA Medical Center in Kansas City. He had received inserts for his shoes and had also been prescribed special shoes. He claimed that his right great toe condition had been chronic ever since his separation from military service. The veteran's former spouse related that he was currently experiencing a considerable amount of pain. A number of medical records were submitted by the veteran in 1999. He waived initial consideration of the records by the regional office. The records included a July 1998 VA outpatient treatment record reflecting that the veteran was seen with a complaint of right ankle instability and a statement by the veteran's brother indicating that after his discharge from service, the veteran had been suffering from conditions including severe headaches and back and leg pain. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Where a veteran served ninety (90) days or more during a period of war and degenerative arthritis becomes manifest to a degree of 10 percent within one 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; 38 C.F.R. §§ 3.307, 3.309. 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 diagnoses including the word "chronic." Continuity of symptomatology is required where the condition noted during service 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 determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). In 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 inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran's service medical records reflect that he was seen in August 1968 after sustaining an injury to his right great toe. Although the veteran has maintained that he sustained a fracture of the toe, a fracture of the toe was not demonstrated on X-ray study made at that time, and such a diagnosis has never been recorded. When the veteran was examined by the VA in December 1968, examination of the right great toe failed to reveal any tenderness or pain in the mid interphalangeal joint, and motion of the toe was normal. An X-ray study of the right great toe did not reveal any abnormality other than a very short first metatarsal (Morton's toe) and a very mild hallux valgus. Although the diagnoses included minimal residuals of a contusion of the right great toe, that diagnosis was not supported by the findings on the examination report. A disability of the right great toe was not demonstrated when he was examined by the VA in April 1982. Although numerous private and VA medical records have subsequently been received by the regional office reflecting treatment of the veteran for various conditions, the treatment records do not reflect the presence of any disability of the right great toe resulting from the inservice injury. Accordingly, it appears that the inservice injury to the right great toe represented an acute and transitory disorder that resolved with treatment, leaving no residual disability. Residual disability is necessary before service connection may be established. With regard to the veteran's claim for service connection for bilateral ankle disabilities, his service medical records reflect no complaints or findings regarding any ankle injury or disability. An ankle disability was not shown when he was examined by the VA in December 1968 and in April 1982. Bilateral ankle disabilities, including arthritis, were initially reported many years following the veteran's separation from military service. No medical authority has proffered any opinion relating the current ankle problems to service. A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In this case, the veteran has not submitted any medical evidence, opinion or other independent evidence which supports his claim for service connection for the claimed disorders. As indicated previously, the medical evidence of record does not reflect that he has any current residual disability resulting from the inservice injury to his right great toe. There is no indication of any medical link between his current ankle disabilities, including arthritis, and his military service. Given the evidence that is of record, the claims for service connection for a right great toe disability and disabilities of both ankles may not be considered well grounded. Since the claims are not well grounded, they must, accordingly, be denied. Grottveit v. Brown, 5 Vet. App. 91 (1993); Eddenfield v. Brown, 8 Vet. App. 384 (1995). Although the Board has considered and disposed of the veteran's claims for service connection for bilateral ankle conditions on a ground different from that of the regional office; that is, whether the claims are well grounded rather than whether he is entitled to prevail on the merits, the veteran has not been prejudiced by the Board's decision. In assuming that the claims were well grounded, the regional office afforded the veteran greater consideration than the claims warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand this case to the regional office for consideration of the issue of whether those claims are well grounded would be pointless and in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C.PREC.OP. 16-92, 57 Fed. Reg. 49, 747 (1992). To submit well-grounded claims, the veteran would need to offer competent evidence, such as a medical opinion, that there is a relationship between any current ankle disabilities, including arthritis, and his military service. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER Entitlement to service connection for a right great toe disability, degenerative arthritis of the right ankle and a left ankle disability is not established. The appeal is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals