Citation Nr: 0000061 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 96-02 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for arthritis of the hips. 2. Entitlement to service connection for arthritis of the back. 3. Entitlement to service connection for arthritis of the shoulders. 4. Entitlement to service connection for arthritis of the arms. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Engle, Counsel INTRODUCTION The appellant served on active duty from June 1967 to June 1969 and from November 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision dated in August 1996, by the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). The appellant appeared at hearing held on October 27th, 1999, before the undersigned Member of the Board who was designated by the Chairman of the Board to conduct that hearing. FINDINGS OF FACT There is no competent evidence of record to establish the presence of arthritis of the hips, back, shoulders and arms that is related to the appellant's periods of active duty. CONCLUSION OF LAW The appellant's claims for service connection for arthritis of the hips, back, shoulders and arms are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Well Grounded Claims "[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." 38 U.S.C.A. § 5107(a); Cambino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542. 545 (1996). A well grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the Court held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Establishing service connection under 38 U.S.C.A. § 1110 generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1996), aff'd per curiam 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied, 66 U.S.L.W. 3799 (June 22, 1998) (expressly adopting the definition of well-grounded claim set forth in Caluza, supra), Heuer and Grottveit, both supra. Alternatively, the third Caluza element can be satisfied under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). For the purpose of determining whether a claim is well grounded, the evidence in support of the claim is presumed credible. See Robinette, 8 Vet. App. at 76; Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that when an appellant presents a claim for VA benefits and provides sufficient support for the claim, VA has a duty to assist the appellant "in developing the facts pertinent to the claim." 38 U.S.C.A. § 5107(a); Allday v. Brown, 7 Vet. App. 517, 526 (1995); Littke v. Derwinski, 1 Vet. App. 90, 91-92 (1990); Murphy, 1 Vet. App. at 81-82. (once a claimant submits a plausible claim, i.e., one which is meritorious on its own or capable of substantiation, the Secretary is obligated to assist in the developing of facts pertinent to the claim); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Furthermore, 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. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary symptoms, or any cough, etc., in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, etc., first shown as a clear-cut clinical entity, at some later date. Id. 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." Id. (emphasis added). 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. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id; see Savage v. Gober, 10 Vet. App. 488, 495 (1997). Upon careful consideration of the evidence of record in this case, the Board finds that the appellant has failed to submit evidence of well grounded claims for service connection for arthritis of the hips, back, shoulders and arms. As noted above, to meet the requirement of a well grounded claim such to allow for analysis of the merits of the claims for service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown supra. In this case, there is no competent evidence of record to establish the presence of arthritis of the hips, back, shoulders or arms which is related to the appellant's periods of service or any incident therein. While the appellant has testified that he was injured during training in 1968, and that he developed arthritis in multiple joints as a result of that injury, the evidence of record does not support these assertions. Review of the service medical records for the period from June 1967 through the service separation examination in April 1969 fails to reveal any evidence of chronic residual disability attributable to a fall in 1968. In fact, on service separation examination in April 1969, the musculoskeletal system was found to be normal. Furthermore, the service medical records covering the period from November 1990 to March 1991 fail to document any significant findings relative to the claims on appeal. Although treatment reports dated after both periods of service document the presence of osteoarthritis in multiple joints, (see private treatment report dated in September 1998), the record is silent with respect to any competent opinion to relate any current joint pathology to either period of service. In view of the above, and the lack of any additional competent evidence to the contrary, the Board finds that the appellant has not submitted evidence which is deemed sufficient to meet the threshold requirements of a well grounded claim. While evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, these assertions do not have to be accepted where they are found to be inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the appellant's evidentiary assertions regarding the presence and relationship between any disability and his service are found to be inherently incredible when viewed in the context of the total record. While the appellant may be competent to offer evidence regarding symptoms, Savage v. Gober, 10 Vet. App. 489 (1997), he is not competent to diagnose the presence of a current disability or to relate the presence of any current disability to any particular event or period of time. Such a relationship, which involves a medical diagnosis, must be identified by an appropriate medical expert. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The quality and quantity of the evidence required to meet the statutory burden of submitting evidence of a well-grounded claim will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, where as in this case, the determinative issue involves medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Board has carefully considered the appellant's statements and testimony with respect to his claims for service connection; however, through these statements alone, he cannot meet the burden imposed by section 5107(a) merely by presenting lay beliefs as to his current diagnosis and it's relationship to service because his current diagnosis and it's relationship to any causative factor or other disability, as noted above, is a medical conclusion and lay persons are not competent to offer medical opinions. Espiritu, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical etiology or diagnosis cannot constitute evidence to render a claim well grounded under section 5107(a). Although VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claims where claims are not well grounded, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the appellant has not put VA on notice of the existence of any additional evidence that, if submitted, could make his claims well grounded. Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a). ORDER The appeal is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals