Citation Nr: 0003173 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-00 619A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for degenerative joint disease, right knee replacement, as secondary to the service- connected residuals of a fracture of the right fibula. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from March 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 1997 rating decision of the Boston, Massachusetts Department of Veterans Affairs Regional Office (RO), which denied the veteran's claim of entitlement to service connection for degenerative joint disease, right knee replacement, as secondary to the service-connected disability of residuals of a fracture of the right fibula. The veteran submitted a notice of disagreement with that rating decision in December 1997 and was furnished with a statement of the case later in that month. In January 1998, the veteran filed his substantive appeal. During the pendency of this appeal, in January 1998, additional evidence was submitted to the RO. Subsequently, in December 1998, the RO issued a rating decision in which it confirmed its prior denial of the veteran's claim. The Board notes that whereas the September 1997 rating decision denied the veteran's claim because not well grounded, the December 1998 denial was based not only on lack of well-groundedness but also on a finding that the additional evidence that it had received during the pendency of the appeal was not new and material. The RO framed the issue of new and material evidence in terms of a test for materiality set forth in Colvin v. Derwinski that has been invalidated as contrary to the regulation defining materiality in cases involving the issue of new and material evidence. See Hodge v. West, 153 F.3d 1356 (Fed. Cir. 1998) & 38 C.F.R. § 3.156(a) (1999); see also Elkins v. West, 12 Vet. App. 209 (1999) (en banc); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). Furthermore, the claim of the veteran for entitlement to service connection for his right knee condition was open when the additional evidence was received by the RO in January 1998, having been placed in appellate status by his notice of disagreement with the September 1997 rating decision. Thus, submission of the additional evidence legally could not have constituted, and did not constitute, an application to reopen the service connection claim. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). However, because the December 1998 rating decision also rested on a basis legally sufficient to deny the claim and independent of the issue of new and material evidence - -the determination that his service connection claim was not well grounded - - the Board finds that the veteran has not been prejudiced by the RO's actions. See Winters v. West, 12 Vet. App. 203, 207 (1999). The Board will decide this appeal without reference to the new and material evidence matter raised by the RO. FINDINGS OF FACT The record contains no competent evidence of a nexus between the residuals of the right fibula fracture sustained by the veteran during service, and for which he has been granted service connection, and his degenerative joint disease and right knee replacement. CONCLUSION OF LAW A well-grounded claim of entitlement to service connection for degenerative joint disease, right knee replacement, as secondary to the service-connected residuals of a fracture of the right fibula has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Background Service medical records indicated that the veteran fractured his right fibula during service in June 1945. X-rays revealed a spiral fracture two inches from the ankle joint. A walking cast was applied. The report of the veteran's separation examination was negative for any defects. The veteran underwent VA examination in August 1964 in connection with his claim of entitlement to service connection for residuals of his right fibula fracture. The examination report noted that the veteran was a letter carrier for the postal service. The veteran complained of pain, stiffness, occasional swelling, and limitation of motion in his right ankle and reported that these symptoms were aggravated by cold weather. Upon examination, he was found to have full range of motion in his right ankle. He was diagnosed with residuals of a right fibula fracture. The veteran was given another VA examination in January 1966. His complaints were the same as in August 1964. He was found to be able to stand, walk, and squat without significant limitations. X-rays revealed minimal roughening of the medial malleolus but no other abnormalities. The veteran was again diagnosed with residuals of a right fibula fracture. VA outpatient and examination records disclosed that the veteran had a variety of problems pertaining to his feet and legs after his discharge from service. In August 1991, the veteran was diagnosed with neuroma involving his right foot. He had been seen in May 1991 with complaints of pain in the ball of his right foot and in June 1991 with complaints of pain with walking. This diagnosis was followed by one, in December 1991, of transient nerve compression in the second and third metatarsals of the right and left feet. In May 1992, the veteran received a diagnosis of capsulitis in his right foot after reporting pain with activity and evincing pain upon palpation during examination. He had been wearing shoe inserts for his symptoms and was advised to continue to do so. In June 1992, X-rays disclosed a fusion of the distal and middle phalanges of the right and left little toes. The examiner opined that the condition might be congenital. VA records indicated that also in 1992, the veteran was seen for his knees. The veteran was examined in September 1992. He complained of having had pain in his right knee for the past three months. It was noted that the veteran had no history of trauma to that knee. It was observed that he had limited range of motion on flexion and abduction of the knee. The diagnosis was degenerative joint disease. X-rays taken in October 1992 revealed a mild degenerative narrowing of the medial intercondylar spaces in both knees. The note concerning an April 1993 neurological consultation stated that the veteran required knee surgery. It was indicated in the records that the veteran underwent a left knee replacement in 1993. A right knee replacement was performed in March 1994. The records concerning this surgery documented that the right knee was replaced because of osteoarthritis. Other VA records documented that in April 1995, the veteran was seen for his right knee and his right ankle. He was found to have post-operative swelling of his right knee and right ankle. X-rays of his right fibula revealed minimal deformity thereof, small calcification densities, and vascular calcification. In March 1997, the veteran was noted to have "severe" degenerative joint disease in both knees, status post bilateral knee replacement. The right ankle of the veteran was examined at a VA facility in September 1997 in connection with a claim for increased evaluation. X-rays showed degenerative changes of the talonavicular joint. The fibula was found to have minimal deformity, and the ankle mortise was found to be intact. The diagnosis set forth in the physical examination report was moderate degenerative arthritis of the right ankle secondary to the fracture of the right lateral malleolus sustained during service. II. Analysis In general, service connection can be awarded for disability resulting from personal injury or disease incurred or aggravated during active service or an applicable presumptive post-service period. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1117, 1131, 1133 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306, 3.307, 3.308, 3.309 (1999). With chronic disease shown as such in service (or within the applicable post-service presumptive period under 38 C.F.R. § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). If a disability is not shown to be chronic during service or an applicable post-service presumptive period, service connection may nevertheless be granted where a disorder has been observed in service or an applicable post- service presumptive period and the symptomatology associated with that disorder is manifested with continuity post- service. Id. Regulations also provide that service connection may be granted for a disease diagnosed after discharge from service where all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In addition, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999). Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service- connected disability. When aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In order that a claim of entitlement to service connection for disease or injury be maintained, the evidence of record must show that the claim is well grounded. See Caluza v. Brown, 7 Vet. App. 498 (1995). This requirement applies to claims of secondary service connection as well. Dinsay v. Brown, 9 Vet. App. 79, 86 (1996); Libertine v. Brown, 9 Vet, App. 521, 522 (1996). That is, the evidence must show that the claim is at least plausible and capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1991). Mere allegations will not well ground the claim. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Unless the Board finds that the claim is well grounded, it has no jurisdiction to proceed to adjudicate its merits. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In general, for a claim for service connection to be well grounded, the evidence of record must show: a current disability; the incurrence (or, in the case of preexisting conditions, the aggravation) of an injury or disease during service or an applicable post-service presumptive period; and a causal nexus between the in-service injury or disease and the current disability. Caluza, 7 Vet. App. 498. Unless not credible on its face, evidence of record will be accepted as true for the purpose of determining whether the claim for service connection is well grounded, see King v. Brown, 5 Vet. App. 19, 21 (1993). However, incompetent evidence will not be considered. Grottveit v. Brown, 5 Vet. App. 91 (1993). Each element of a well-grounded claim must be supported by evidence that is competent with regard to the question in concern. Although a layperson is generally regarded as a competent source of evidence of symptoms, see Savage v. Gober, 10 Vet. App. 488 (1997), the first element of a well-grounded claim usually requires that the record contain a current medical diagnosis. Caluza, 7 Vet. App. at 506; Voerth v. West, 13 Vet. App. 117 (1999). The second element of a well- grounded claim, the incurrence or aggravation of an injury or disease during service, may be shown by competent lay evidence where the question is factual in nature, such as whether an incident or injury occurred in service. See Grottveit, 5 Vet. App. 91. However, when questions concerning medical causation or a medical diagnosis are involved, competent medical evidence is required. See Grottveit, 5 Vet. App. 91. The third element of a well- grounded claim, a causal nexus between the condition incurred or aggravated in service and the current disability, requires a determination of medical causation or etiology. The record must contain medical evidence in the form of an opinion by a physician or other medical expert that this nexus exists. See Caluza, 7 Vet. App. at 506. Lay testimony standing alone will not be sufficient evidence of this or any other medical proposition required to be shown in a well-grounded claim. See Voerth v. West, 13 Vet. App. 117 (1999). In a claim of entitlement to secondary service connection for disease or injury, the primary condition must be service- connected. For the claim to be well grounded, the evidence of record must show with plausibility that the claimant currently has the disability for which secondary service connection is claimed. As with claims of entitlement to service connection, competent medical evidence of the claimed current disability is required. See Caluza, 7 Vet. App. at 506; Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994). There must also be a plausible showing of a nexus between a service-connected disability and the claimed current disability. This showing also involves resolution of an issue of medical causation or etiology. Therefore, as with claims of entitlement to service connection, it must be made by medical evidence See Dinsay 9 Vet. App. 79. Lay assertions will not be sufficient to establish the plausibility of the required nexus. See Jones (Wayne) 7 Vet. App. at 136-38. In this case, the record demonstrates that the veteran has a service-connected disability, the residuals of a fracture of the right fibula. The veteran was granted service connection for that disability by rating decision dated in August 1964. In addition, competent medical evidence of record establishes the existence of the disability for which secondary service connection is sought. Inpatient and outpatient hospital records make clear that the veteran's arthritis in his right knee resulted in a right knee replacement in March 1994. However, a well-grounded claim of secondary service connection also requires that a plausible link between the service-connected disability and the secondary condition be shown by medical evidence. The veteran and his representative have advanced two alternative theories under which they attempt to demonstrate the existence of such a link. First, they have argued under 38 C.F.R. § 3.310 that the veteran acquired his right knee condition as a result of an altered gait that was in turn a residual of his right fibula fracture and is therefore entitled to service connection for that condition. Second, they have argued under the holding of Allen v. Brown that the veteran's right knee condition, specifically arthritis, although possibly of independent origin, was aggravated by the residuals of his right fibula fracture. The question before the Board is whether there is competent evidence of record establishing the plausibility of either or both contentions. It is the Board's conclusion that no such evidence has been produced. The record is devoid of any medical opinion that there is a link between the right knee condition of the veteran and his degenerative joint disease, right knee replacement. Neither the veteran nor his representative has been shown to be trained medical professionals. Their assertions and beliefs thus constitute lay opinion, and lay opinion is not competent evidence of a medical nexus required to establish a well grounded claim. See Jones (Wayne), 7 Vet. App. 134; Voerth, 13 Vet. App. 117. As a well-grounded claim has not been presented, the veteran's claim must be denied. The Board notes herein the arguments of the veteran's representative that this case should be further developed and that a physical examination should be conducted or medical opinion obtained concerning the alleged relationship between the service-connected right fibula fracture residuals and the right knee replacement. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a) (West 1991), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). As the Board is finding herein that the veteran's claim for secondary service connection is not well grounded, further development of the evidence by VA is not warranted. ORDER As a well-grounded claim has not been presented, entitlement to service connection for degenerative joint disease, right knee replacement, as secondary to the service-connected disability of residuals of a fracture of the right fibula is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals