Citation Nr: 0002292 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-12 143A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had verified active service from December 1971 to November 1973 and June 1981 to July 1985, and unverified service from July 1985 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that the issue on appeal is entitlement to service connection for a bilateral foot disorder on a direct basis. Although the RO adjudicated the issue on a direct basis and as due to an undiagnosed illness, as set out in the July 1998 statement of the case, the veteran specifically contended in his August 1998 substantive appeal that the bilateral foot disorder was due to a motor vehicle accident in May 1994. The RO discussed direct service connection in its rating action and its SOC. Therefore, given that the veteran specifically did not appeal the issue of entitlement to service connection for a bilateral foot disorder due to an undiagnosed illness, the Board will consider the claim on a direct basis only. 38 C.F.R. § 20.202 (1999). In September 1998, the RO granted the veteran's timely appealed claim of entitlement to service connection for cervical strain. Therefore, having been decided in the veteran's favor, this claim is no longer on appeal. FINDING OF FACT The claim of entitlement to service connection for a bilateral foot disorder is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for a bilateral foot disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking service connection for a bilateral foot disorder. He contends in his August 1998 substantive appeal that he injured his feet when a motor vehicle struck him in 1994. The legal question to be answered initially, however, is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him with any further development. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. 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 (West 1991); 38 C.F.R. § 3.303 (1999). However, "[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). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Claims for Veterans Appeals (Court), lay observation is competent. The veteran's service medical records show no indication of any treatment for or diagnosis of a bilateral foot disability during his period of service. Service records show that the veteran was struck by an automobile in May 1994 and in June 1994, he complained of various pains including the feet after giving a history of being struck by an automobile. No diagnosis concerning the feet was given. While the veteran reported on the November 1996 report of medical history that he had experienced foot trouble, the examiner attributed this to a history of ankle pain. The November 1996 retirement physical examination disclosed no bilateral foot disorder. Post service medical records are negative for the claimed disability. With respect to the foregoing the Board notes that, while the veteran claims that he developed a bilateral foot disorder as a result of an in-service motor vehicle accident in May 1994, he has offered no competent evidence to establish such a relationship, other than his own unsubstantiated contentions. While the veteran is certainly capable of providing evidence of symptomatology, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The service medical records do not reflect a diagnosis of a bilateral foot disorder. The veteran has submitted no medical opinion or other competent evidence to show that he currently has a bilateral foot disorder. The laws governing service connection demand that the veteran present competent evidence of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Furthermore, even assuming, without conceding, that he currently has a bilateral foot disorder, he has provided no competent evidence that it is in anyway related to his period of service. The representative contends, in the January 2000 informal hearing presentation, that the Board should remand the case because the veteran submitted new evidence after the last statement of the case, without waiving RO consideration pursuant to 38 C.F.R. § 19.37 (1999). Specifically, 38 C.F.R. § 19.37(a) provides that additional evidence received by the RO prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the statement of the case and any prior supplemental statement of the case were prepared before the receipt of the additional evidence, a supplemental statement of the case will be furnished to the appellant and his or her representative, unless the additional evidence received duplicates evidence previously of record which was discussed in the statement of the case or a prior supplemental statement of the case or the additional evidence is not relevant to the issue on appeal. Id. In this regard, the Board has determined that the additional records are not relevant to the issue on appeal because they do not contain a diagnosis linking a current bilateral foot disorder to the veteran's period of service. With respect to the evidence submitted after the July 1998 statement of the case, the only reference to the veteran's feet was made by Arthur Lorber, M.D., a private physician, in a September 1997 examination report. Dr. Lorber's impression was that the veteran had foot pain of unknown etiology. The Court has held, however, that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, U.S. Vet. App. Dec. 29, 1999. In light of the Court's decision, the Board finds that Dr. Lorber's impression is at best a diagnosis only of pain without connection to an underlying condition and a medical nexus to service, which as noted above, cannot warrant service connection. Id . Similarly, with respect to the additionally submitted May 1994 emergency room record, the treating physician, David Medland, M.D., did not discuss any foot pathology resulting from the motor vehicle accident. The Board finds, therefore, that remanding this case for RO consideration of the additional records would be pointless because they do not contain a diagnosis linking a current bilateral foot disorder to the veteran's period of service and, thus, they are not relevant to the outcome of the case. Accordingly, since the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, the benefit sought on appeal is denied. 38 U.S.C.A. § 5107. As the foregoing explains the need for competent evidence of a current disability which is linked by competent evidence to service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disability. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). ORDER Service connection for a bilateral foot disorder is denied. NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals