Citation Nr: 0003894 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 93-16 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the residuals of a torn medial meniscus of the right knee. REPRESENTATION Appellant represented by: Jeffrey D. Stachewicz, Esquire WITNESS AT HEARING ON APPEAL Appellant and his former spouse ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran had active military service from October 1943 to September 1947, and from March 1949 to July 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1991 rating decision of the Department of Veterans Affairs (VA) regional office (RO), in Phoenix, Arizona. A hearing was held in June 1993, in Phoenix, Arizona, before Dr. William H. Yeager, M.D., who was a member of the Board section rendering the determination in this claim and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). A transcript of the hearing was received, and the case was subsequently referred for appellate consideration. [Since the appellant's hearing and after the production of the transcript thereof, Dr. Yeager resigned from the Board. The appellant was notified of Dr. Yeager's resignation and given the opportunity to provide additional testimony before a different Board member. He declined such an opportunity.] In January 1994, the Board denied the veteran's claim and the veteran appealed to the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims) (Court). The Court vacated the Board's decision and remanded the case for compliance with the duty to assist in obtaining evidence of which the Board had notice. The Board then remanded the claim to the RO in accordance with the Court's instructions. The claim has since been returned to the Board for review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. In 1944, the veteran reportedly was hit in the right knee with the butt of a rifle. The service medical records do not indicate the exact location of the injury and they are silent as to any residuals from the incident. 3. The post-service medical records show that the veteran tore his right medial meniscus in 1987. Medical treatment and unemployment (workman's compensation claim) records do not attribute the tear in the right medial meniscus to the 1944 inservice injury of the right knee. CONCLUSION OF LAW The claim for entitlement to service connection for the residuals of a torn medial meniscus of the right knee is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999); Edenfield v. Brown, 8 Vet. App. 284 (1995) (en banc). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background In April 1944, the veteran injured his right knee when he was hit in the knee with a rifle butt. He was treated and per the available medical records, there was no indication that this injury produced a ratable disability. However, following his release from active duty in 1947, service connection was granted for the residuals of a bruise to the right knee. VA Form 8-564, Rating Sheet, November 14, 1947. A noncompensable evaluation was assigned. Twenty-six years later, after the veteran had complained about pain in the right leg, it was re-examined with no disabling symptoms found. The noncompensable evaluation was carried forward with the disability being renamed from a bruised right knee to the "history of a right leg sprain". VA Form 21-6796, Rating Decision, May 14, 1973. On October 27, 1987, while walking down a flight of stairs, he turned/pivoted, and felt "something snap" in his right knee. He had near-immediate pain in the medial join line along with pain in the posterior calf area. [During the examination, the veteran informed the doctor of the rifle butt incident while the veteran was in service, but the doctor did not etiologically link the 1987 accident with the rifle butt incident or any residuals of the rifle butt incident.] Swelling occurred, and eight days later he was diagnosed as having a torn right medical meniscus. The veteran began physical therapy but in July 1988, after it was determined that physical therapy and conservative treatment was not causing the injury to improve, arthroscopic surgery was performed. A video cassette tape recording of the surgery was made during which the surgeon described the procedure used and the findings of the operation. A copy of the tape has been included in the claims folder. A VA physician, Dr. C. A. Prior, Jr., reviewed the tape and wrote a memorandum concerning it. The memorandum is in the claims folder and is dated October 17, 1996. In that memorandum, Dr. Prior explained what was on the tape. He specifically noted that the surgeon did not etiologically link the torn medial meniscus with the veteran's 1944 right knee injury. The Board also observes that the veteran's treating physician, a Dr. Elliott Katz, during the time in which he was treating the veteran from 1987 to 1990, did not suggest that the veteran's then-current right knee condition was related to or caused by the 1944 right knee injury. In 1992, in conjunction with his claim before the VA, the veteran submitted two "buddy" statements concerning his right knee. The first was from his former spouse, dated September 4, 1992. In her written statement, she claimed that the veteran had pain and swelling in his knee during his service in the U.S. Air Force. The second statement, by R.W. and D.W., dated November 7, 1992, reported that the veteran had pain in his legs, which caused the veteran to have trouble walking or standing for prolonged periods. The veteran and his former spouse testified before the Board in a hearing at the RO in June 1993. The veteran testified that he had injured his knee in 1944. He claimed that this condition continued to bother him during his time in the U.S. Navy and the U.S. Air Force. He specifically mentioned a time when he was jumping off a diving springboard and felt a snap. He testified that the snapping was in the knee. Additionally, he averred that if he had not suffered the injury to his knee in 1944, he would have not suffered the tear in the right medial meniscus in 1987. The veteran's ex- spouse merely repeated the statements she made in her September 1992 written statement. As reported, in 1996, Dr. C. A. Prior, Jr., reviewed the video cassette tape recording of the veteran's 1988 arthroscopy of the right knee. Dr. Prior's memorandum follows: I have reviewed a video tape of an operative procedure, apparently arthroscopy, on an area identified as a knee. The label attached identifies the veteran by name and notes the name Elliott S. Katz, apparently the operating surgeon. The date is given as 7/21/88. The audio portion of the tape is quite good in the beginning, and indicates it is running comment by the operating surgeon as he is working. Toward the end, the audio portion is to me unintelligible. In the tape, the surgeon identifies degenerative changes involving the medial femoral condyle much more marked than minimal changes seen in other parts of the knee. The surgeon notes a little "wear and tear" on the patella, and on the lateral tibial plateau, and does comment this would be expected in a 61 year old, the veteran's age at the time of surgery, according to comments on the tape. The changes on the medial femoral condyle were significantly different, as the surgeon noted and pointed out. Also noted was a partial tear of the medial meniscus, which had folded under itself. The operative procedure essentially consisted of freeing up and trimming the tear of the meniscus and debridement of the medial femoral condyle. I did not hear any comment from the surgeon as to how long any changes had been present. On review of the records, office notes, identified as those of Dr. Elliott Katz, begin November 5, 1987, reporting an injury to the right knee when veteran twisted going down stairs in a fire drill. In the note dated November 5, 1987, there is history, obviously by the veteran, of being struck about the medial knee with a rifle butt during World War II with pain and swelling "quite a long time". This history is NOT confirmed by the record. Dr. Katz's notes continue until January, 1990, but there is a gap between January 1988 and July 27, 1988, at which time the veteran is reported a "postop". The operation is undoubtedly the one of the video tape. The report of the veteran being struck with a rifle butt and having problems with the knee is not really confirmed. Veteran had two periods of service, October 1943 to July 1947, and March 1949 to July 1966. On enlistment examination October 5, 1943, a one inch scar was identified on the medial side of the right knee. Such a scar was later identified on VA examination March 21, 1973. Service medical record dated April 17, 1944 reported "bruised right leg from being hit with rifle butt" but the right leg was "sensitive in calf". . . . He was fit for duty April 20, 1944, three days later. There is no other note concerning the right leg in this period of duty. Rating decision dated November 14, 1947, granted service connection for a "bruise right knee", but did not provide rationale for this grant. There is no record of a VA examination having been done, and on review, a finding of a right knee problem, bruise or otherwise, is not shown by records currently available. Service medical records for the second period of service have no record of any knee complaints or problems until June 24, 1963, which reports a phone call noting swelling and pain of the right knee of 3 days duration . . . . There is no indication there was any follow-up. In 1965, veteran had two "retirement" examinations, and yet another one February 9, 1966. In each of these there is a note of a history of swelling of the right knee, cause undetermined, with hospitalization at Philadelphia Naval Hospital 1944. It is not clear from the record whether the veteran reported this three different times, or whether he reported it once and it was just carried over into the next examination. In either case, as noted above, such a history is not documented in the record. Veteran also gave the history of rifle butt injury, pain and swelling in 1944 at the VA examination of March 21, 1973, and denied problems at the time of examination. This is the first VA examination in the record; no abnormality of the knee was found except for the medial scar, which existed prior to any military service. Service medical records show June 10, 1965, veteran was seen for an injury to the right leg. He had had sudden pain and a "snap" using a springboard several weeks before, with ecchymosis near the medial malleolus [the ankle] for 3 days and pain on walking. Then he had had recurrent "snap" without ecchymosis on two occasions associated with sudden contraction of the calf muscle. He was seen on June 10 because of 2 days of swelling of the leg and ankle. Diagnosis was probable partial tear of the soleus or gastrocnemius muscle. The description in the service medical records fits the description of rupture of the calf muscle as noted in Cecil's TEXTBOOK OF MEDICINE, 19th edition, 1992, page 365. The significance in this is an injury of the calf muscle and not of the knee. In my opinion, it is most likely the veteran's current problems are directly related to his right knee injury in 1987, and not related in any way to military service. First: an injury to the right knee in service is not well documented, and there is serious doubt the right knee was injured. The record of April 17, 1944 does not confirm such an injury, and the record of July 24, 1963 is too vague for any conclusion: complaints of pain and swelling by phone, without examination or even observation, is not much evidence. Problems with the right leg, the musculature, not the knee, is confirmed by the record, and memory of the veteran could confuse the two. But none-the-less, the only real evidence is veteran's statement many years after the events. Second: even if there was a strike on the right knee with a rifle butt in 1944, there is no evidence it created a chronic condition. VA examination almost 30 years later found no complaints or abnormality of the knee, except for scar from a time prior to military service. Third: there was a significant injury to the right knee in 1987, which caused a rupture of the medial meniscus. It is possible the same injury caused increased degenerative changes in the right medial femoral condyle. The torn medial meniscus was folded and could well have abraded the medial femoral condyle in the months, about eight, between the injury and the surgical treatment. By either mechanism, or a combination of the two, the increased degenerative changes in the same area as the torn meniscus indicates it is most likely the trauma associated with the tear was the cause of current problems. Also contained in the claims folder is the veteran's claim before the Arizona State Compensation Fund. After the veteran tore his medial meniscus, he submitted a claim for unemployment benefits. The actual claim forms do not indicate that the veteran had a pre-existing injury (the 1944 injury), and the veteran certified that the incident that led to the tearing of the medial meniscus was the turning of the knee in October 1987. In other words, under threat of criminal penalty if he submitted a false statement, the veteran did not attribute his injury to his military service or any incident therein. II. Analysis The veteran contends that he now suffers from a right knee disability, and that the underlying condition, the tear in the right medial meniscus, was caused by or the result of his service-connected right leg sprain. Compensation will be provided if it is shown that a veteran suffers from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Moreover, under 38 C.F.R. § 3.310 (1999), a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is established for a secondary condition, the secondary condition shall be considered as part of the original decision. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). A service connection claim must be well-grounded. A well- grounded claim requires more than mere allegations; it must be plausible and with merit. 38 U.S.C.A. § 5107 (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Murphy v. Derwinski, 1 Vet. App. 78 (1990). For a claim to be well- grounded, there must be: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is "plausible" is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the type of evidence needed to make a claim well-grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Lay evidence is also acceptable to show the incurrence in service if the veteran was engaged in combat and if the evidence is consistent with the circumstances, conditions and hardships of such service, even though there is no official record of such incurrence. 38 U.S.C.A. § 1154 (West 1991); 38 C.F.R. § 3.304(d) (1999). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Moreover, if a claim is not well grounded, then the Secretary no longer has a duty to assist a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The question of whether or not a claim is well grounded is significant because if a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In this regard, the United States Court has observed that the statutory prerequisite of submitting a "well-grounded" claim "reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay claims which--as well-grounded-- require adjudication. . . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones." Grivois v. Brown, 6 Vet. App. 136, 139 (1994). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). 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 the determinative issue involves medical causation or a 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). Furthermore, "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 1991). In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As noted, the veteran's service medical records from his first period of enlistment are very superficial and do not specify where the veteran's knee was injured when it was hit with a rifle butt. Moreover, the veteran's service medical records are silent for a diagnosis of a residual chronic, recurrent right knee disability related to the rifle butt incident. These same records are negative for any symptoms of or treatment for a strain of the right medial meniscus. During the course of this appeal, the veteran and his medical records have been reviewed by numerous physicians in order to determine the etiology of his present right knee condition. The doctors have not positively linked the veteran's torn medial meniscus with his 1944 inservice injury. That is, while they have reported the injury, they have not hypothesized that the 1944 injury caused or resulted in the veteran's tearing of the medial meniscus. At most, they have reported the 1944 injury along with the 1987 injury, without assessing any connection between the two. The claims file also contains statements made by friends of the veteran and by his wife. These statements do state that the veteran suffered pain and discomfort in the right leg while he was in the U.S. Air Force. The friends and the former spouse seem to suggest that the veteran's current right knee condition is the result of a long-standing problem that began while the veteran was in service. The veteran's former spouse and his friends have relied upon their own opinions as to medical matters. Because the determinative issue in this matter involves medical etiology and the diagnosis of a condition, the lay statements are not in and of themselves sufficient to establish the relationship between the veteran's military service, a service-connected disability, and any condition from which the veteran may now suffer. See Grottveit v. Brown, 5 Vet. App. 91 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). If there is insufficient evidence to establish chronicity in service, evidence of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b), as is medical evidence of a nexus between the symptomatology and the current disability. See Savage v. Gober, 10 Vet. App. 488 (1997). The Court has held that a lay person can provide probative eye-witness evidence of visible symptoms; however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has further held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet. App. at 93. In this regard, the Court has elaborated further as to the type of evidence that would be required to establish a well- grounded claim for service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b). As to type of evidence, unless the condition is of a type as to which a lay person's observation is competent, medical evidence of noting will be required. In addition, because it does not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent. Savage, 10 Vet. App. 488. Accordingly, statements by the appellant's former spouse and his friends as to any signs of pain the appellant may have exhibited will not be sufficient to establish a nexus between the current disorder and the veteran's symptoms. Under the provisions of 38 C.F.R. § 3.303(d) (1999), service connection would be warranted if evidence sufficiently demonstrates a relationship between the veteran's service- connected disability or his military service (and any incidents therein) and a current disability. The Board is left with the assertions made by the veteran. Despite the many contentions made by the appellant, the medical records do not corroborate those contentions. There are only the personal, uncorroborated statements by the veteran, his former spouse, and his friends to support the claim. In order for a claim to be well grounded, there must be competent medical evidence of a current disability, the occurrence of a condition or disability while in service, and a nexus between an inservice injury and disease and a present disability. Caluza v. Brown, 7 Vet. App. at 506. Competent medical evidence has not been submitted by the appellant demonstrating that the residuals of a torn right medial meniscus are related to his military service, to any incidents therein, or to a service-connected disability. Mere contentions of the appellant, no matter how well- meaning, without supporting medical evidence that etiologically relates the claimed condition with the veteran's service do not constitute a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, the claim of entitlement to service connection for the residuals of a torn medial meniscus of the right knee is not well grounded, and the claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1994) (en banc). The appellant has the initial burden of establishing a well- grounded claim for service connection for the residuals of a tear of the medial meniscus of the right knee and, until he does so, the VA has no duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991); see Grivois v. Brown, 6 Vet. App. 136, 139-140 (1994). Where a claimant refers to a specific source of evidence that could make his claim plausible, the VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). In this case, the VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits. 38 U.S.C.A. § 5103(a) (West 1991). Nothing in the record suggests the existence of evidence that might well ground his claim for service connection for the residuals of a torn medial meniscus of the right knee. Since the presentation of a well-grounded claim is a threshold issue, the Board has no jurisdiction to adjudicate the claim unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). Moreover, there is no duty to assist further in the development of the claim, because such additional development would be futile. See Murphy, 1 Vet. App. 78. ORDER Entitlement to service connection for the residuals of a torn medical meniscus of the right knee is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals