Citation Nr: 0003964 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 96-18 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for disability of the left foot. 2. Entitlement to service connection for disability of the right foot. REPRESENTATION Appellant represented by: American Coalition for Family Assistance ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The appellant served in the air national guard from February 1960 to January 1966, with a period of active duty from February to April 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 1996 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that in correspondence dated in February 1998 the veteran's representative requested that this case not be forwarded to the Board until such time as the representative had the opportunity to review the case and make any appropriate comments. In November 1999 the RO issued a supplemental statement of the case. The appellant and his representative were given a 60 day period to respond to the supplemental statement of the case. No response was received within 60 days, and the case was forwarded to the Board in January 2000. FINDINGS OF FACT 1. The appellant currently has no disability of the left foot. 2. The appellant currently has no disability of the right foot. CONCLUSIONS OF LAW 1. The claim for service connection for disability of the left foot is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for disability of the right foot is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The appellant's February 1960 enlistment examination was negative for complaint of foot trouble, and clinical evaluation of the appellant's feet was normal. A March 1960 service medical record of treatment shows that the appellant complained of pain in the left leg. Physical examination was normal. A March 1960 separation examination was negative for complaint of foot trouble, and clinical evaluation of the feet was normal. During a December 1962 reenlistment examination, the appellant gave a history, as commented upon by a physician, of occasional foot problems due to over-exposure to the cold several years ago. Clinical evaluation of the feet was normal. The appellant's oldest brother was listed as 27 years old at the time of examination. In three undated reports of medical history, in which the appellant's oldest brother is listed as 28, 29 and 30 years old, in response the question "have you ever had or have you now" foot trouble, the appellant responded yes, with no elaboration. During a June 1997 VA examination, the appellant gave a history of having incurred an injury one Sunday morning in the United States Air Guard during the January 1960 to January 1966 time frame. He said that while wearing tennis shoes he was asked to help move a pressure cooker in the kitchen. He said he was unaware that it was full of water and he dropped the cooker, with the kettle hitting his left foot across the toes and the lid hitting the right foot. He sated that he developed acute pain bilaterally, greater in the left than the right foot, with no abrasions or lacerations. He indicated he developed extensive ecchymoses. He said he left early from guard duty that day and required 3 to 4 weeks of bed rest at home, during which time he was unable to walk. He stated that he missed the next weekend guard duty, but was able to return 2 months later to active guard duty. He stated that while at home, his mother with whom he lived at the time helped care for him, cooking meals and caring for his feet. According to the VA examiner, upon further questioning, the appellant was completely unable to remember when this accident happened during air guard duty. The VA examiner reviewed the service medical records and made observations as follows. On his initial entrance physical examination the appellant checked the box marked 'no' regarding whether he had ever had foot trouble. Later on a re-enlistment physical examination dated December 2, 1962, he checked the box for foot trouble 'yes.' The military physician indicated the appellant had occasional foot problems due to over-exposure of cold several years ago. All other service medical records were reviewed, including the appellant's discharge examination report of history, in which he again checked the 'yes' box regarding foot trouble, but with no elaboration indicating the foot injuries which the appellant now claims. The June 1997 VA examiner appears to have conducted a thorough orthopedic and neurological physical examination of the appellant. With respect to the appellant's feet, there was no lower extremity edema, acrocyanosis, or digital clubbing. Peripheral pulses were 2/4 and symmetric at the radial, dorsalis pedis and posterior tibialis arteries bilaterally. Toes were downgoing and symmetric bilaterally. Light touch and pinprick sensation and vibratory sensation were completely intact on all skin surfaces in both lower extremities. Strength was 5/5 and symmetric within the intrinsic muscle groups of both feet. Muscle tone was normal. Romberg's sign was negative. Cerebellar function studies were completely intact in both lower extremities and symmetric. Muscle tone was normal. The appellant was able to walk on the balls as well as the heels of both feet without difficulty or complaints of pain. Further examination of the intrinsic joints of both feet, including metatarsal, phalangeal, PIP and DIP joints revealed no deformity, no joint tenderness, and no soft tissue edema, swelling or tenderness in either foot. The examiner's assessment was status post reported blunt trauma during National Air Guard military service performed at the Sioux Falls, South Dakota, air base. The examiner stated that this resulted in traumatic fractures, according to the appellant's description, in at least one or more toes of both feet. The examiner concluded that after examining the appellant's feet, he could find no evidence of prior fracture or blunt trauma. No functional abnormality of either foot was found. According to the examination report, X-rays taken in June 1997 revealed no osseous or soft tissue abnormalities. Analysis The threshold question that must be resolved with regard to a claim is whether the appellant has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). 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 appellant must submit medical evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). If the appellant has not presented a well-grounded claim, his appeal on the pertinent issues must fail and there is no duty to assist him further in the development of the claim. 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (1997). In order for a claim for service connection 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 in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence 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. Id. Service connection 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, in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also provide that 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). Entitlement to service connection may be granted for disability resulting from disease or injury incurred or aggravated in active duty for training, or for disability resulting from injury incurred in inactive duty for training. 38 U.S.C.A. §§ 101(24), 1110, 1131 (West 1991). When a disability is thus incurred, the period of service is considered active military, naval, or air service. 38 U.S.C.A. § 101(24). The Board acknowledges the appellant's contention that he presently has left and right foot disability as a result of an inservice foot injury. However, the appellant, as a lay person, is not competent to provide an opinion which requires medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the present case, there is no competent medical evidence of a current disability of the appellant's left or right foot. Without competent medical evidence of a current disability, the claims for service connection for left and right foot disability must be denied as not well grounded. Caluza; Epps. The Board acknowledges the appellant's assertion that not all service medical records have been obtained. The Board notes that the appellant's service medical records include a service entrance examination in February 1960, an active duty separation examination in March 1960, records of treatment in March 1960 and December 1961, a separation examination in December 1962, a note from a private physician regarding the appellant's wool allergies dated in December 1963, and three undated medical histories. Based on the age of the appellant's oldest brother reflected in the histories, the three undated histories appear extremely likely to have been from the years 1963 through 1965. No mention of the claimed foot injury is mentioned in these records. Also included with the service medical records are records of immunization from May 1960 to June 1965. Documentation of record indicates that the RO was informed by the South Dakota Air National Guard in February 1996 that the appellant's records were not in its possession and had been forwarded to the National Personnel Records Center. Subsequently, the appellant's service medical records were obtained from the National Personnel Records Center. Although the Board cannot be sure that the service medical records in the claims file are complete, the Board notes that they span the period from 1960 to 1965 and that the RO has made reasonable attempts to obtain the records from the appellant's reserve unit and from the National Personnel Records Center. In any event, the June 1997 VA examiner fully acknowledged the history as conveyed by the appellant, yet after thorough examination found that no current disability of the feet existed. Without evidence of a current disability, a search for additional service medical records which may or may not exist would be futile, as the appellant's claim for service connection for disability of the left and right feet would inevitably remain not well grounded. The apparent futility of such a search is compounded by the appellant's inability to allege a time frame during which the injury occurred which is more specific than one Sunday from January 1960 to January 1966. In light of the foregoing, the Board finds that a remand for further searches for additional service medical records is not warranted under the particular facts of this case. ORDER The claim for service connection for disability of the right foot is denied. The claim for service connection for disability of the left foot is denied. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals