BVA9505111 DOCKET NO. 93-08 827 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for arthritis of the ankles and left hip. 2. Entitlement to a rating in excess of 10 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from April 1942 to October 1945. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that a higher rating is warranted for his pes planus due to increased problems associated with this disability. He further believes that his arthritis in the ankles and left hip began due to his pes planus. In the alternative, he asserts that his ankles were sprained in service, leading to his current ankle arthritis. He claimed in his substantive appeal that several doctors have told him that his flat feet caused the arthritis. In an April 1993 statement, the representative asserted that since the Department of Veterans Affairs (VA) examiners did not provide an opinion as to the etiology of arthritis, despite being asked to do so, the evidence is in equipoise and the service connection claims should be granted. In the alternative, the representative requests another medical examination. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not presented well grounded claims for service connection. For the following reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral pes planus. FINDINGS OF FACT 1. Service records are devoid of indication of ankle or left hip abnormality; arthritis of the ankles and left hip was first shown years after service; no medical evidence demonstrating a connection between arthritis of the ankles or left hip and service, or demonstrating a connection between arthritis of the ankles or left hip and service-connected bilateral pes planus, has been received. 2. Bilateral pes planus is manifested by findings including flat, flexible feet, with flattening of the arches on weight bearing, and complaints of pain, without more than moderate impairment of the feet. CONCLUSIONS OF LAW 1. The claims for service connection for arthritis of the ankles and left hip are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for a rating in excess of 10 percent for bilateral pes planus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served for 90 days or more during a period of war, and arthritis develops to a degree of 10 percent or more within one year from date of service separation, then such disease may be service connected even though there is no evidence of such disease in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The veteran's only service-connected disability is bilateral pes planus. Service connection may be granted for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (1994). The threshold question to be addressed regarding the service connection claims is whether the veteran has presented well grounded claims. If he has not presented well grounded claims for service connection, then these appeals must fail and there is no duty to assist him further in the development of these claims. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1992). Case law provides that although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity 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 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). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak, 2 Vet.App. at 611. If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Service medical records reveal that at induction examination in April 1942, the veteran was normal in pertinent respects. In February 1944, the feet showed moderate relaxation of the longitudinal arches with pain and spasm. A February 1944 X-ray showed suggestion of hallux rigidus, slight flattening of the heads of the 2nd and 3rd metatarsals, and moderate pes planus. An undated "previous personal history" showed that the veteran had been in the Army 2 years and gone on all hikes, with complaints of progressively tired, swollen feet after hikes and confinement to quarters thereafter. His shoe size had increased. The final diagnosis in March 1944 was pes planus, bilateral , second degree, symptomatic. At separation examination in October 1945, the pertinent diagnosis was second degree bilateral pes planus with eversion, symptomatic. An October 1946 rating decision granted service connection for pes planus, second degree, bilateral, with eversion, symptomatic, based on service medical records. VA examinations in October 1949 and May 1958 resulted in the diagnosis of bilateral symptomatic pes planus. The veteran submitted evidence of private treatment in September 1959, and a VA examination in November 1959 confirmed the diagnosis of "bilateral pes planus of mild to moderate degree, allegedly symptomatic." In December 1968, his private doctor asserted that the pes planus had worsened, with inversion angling of the ankles since service. A February 1969 VA examination revealed bilateral pes planus without abnormality on foot X-ray. In November 1985, the veteran complained to his private doctor that when he walked long distances, his ankle swelled up. The impression after examination and X-rays was degenerative arthritis of the right tibiotalar joint. January 1986 VA examination showed degenerative changes in the right tibiotalar joint without other abnormality noted on X-ray of the feet. VA examination May 1986 revealed moderate forefoot varus, slight pronation, visible edema and tenderness of the right anterolateral ankle, and crepitation of the right ankle on range of motion testing. There was no swelling or redness over either ankle or any foot joint. Pes planus was said to be fairly marked, but with the examiner was able to insert 3 fingers in the arches to 1 centimeter with the veteran standing. The veteran walked fairly well but could not walk on his toes due to pain, especially right ankle pain. He could walk on his heels with some difficulty. The impressions were degenerative arthritis, primarily right ankle, slight forefoot varus, and slight pronation. In July 1991, the veteran saw G. Bills, M.D., for right ankle pain, and was noted to complain of pain on ambulation. X-rays showed advanced degenerative joint disease (DJD) of the right ankle, and moderate DJD in the left ankle. The impression was progressive osteoarthritis. In August 1991, the veteran saw Dr. Bills for left hip and right ankle pain. On examination he walked with a limp. X-rays of July 1991 were noted to show advanced DJD of the left hip with narrowing of the joint surface and a cyst in the femoral head. At orthopedic VA examination in February 1992, the veteran complained of severe bilateral ankle pain, greater on the right. He reported that while on maneuvers during World War II he jumped from a wall and injured both ankles. He said that he could ambulate less than 1 block due to primarily to right ankle pain and left hip pain. He required an ankle foot arthrodesis with a cane for ambulation. He took Darvocet for pain. His ankle and left hip pain were reportedly worse at night. On examination, his right ankle had swelling but could perform up to 10 degrees of dorsiflexion, and 30 degrees of plantar flexion, with pain. The left hip performed up to 20 degrees of external rotation, 105 degrees of abduction, and 5 degrees of extension. X-rays taken at that time were said to show severe advanced degenerative arthritis of the left hip with sclerosis, cartilage space narrowing, and spur formation. Both ankles also showed advanced degenerative arthritis of the tibiotalar joints with loss of all cartilage especially on the right, and also subcondylar sclerosis and spurring. The impressions were severe bilateral tibiotalar degenerative arthritis of the ankles, greater on the right, limiting the veteran to less than one block of ambulation, and severe left hip osteoarthritis, also limiting ambulation. The examiner noted that no causal relationship between the hip and ankle arthritis could be identified, based on difficulty of such a determination. Osteoarthritis of the hip was probably exacerbated by the "prior ankle disease." At his personal hearing in October 1992, the veteran testified that he has to trim calluses off of the bottoms of this feet. His feet were bothered by walking in a shopping mall on hard floors. He recalled spraining his right ankle on training maneuvers in service. (transcript at pages 4-5 or t. 4-5.) His left ankle was also sprained at the same time. (t. 7.) He underwent therapy in service and thereafter was not required to do extended walking. (t. 6-7.) He had seen Dr. B. Wildhaber after service, who has since died. (t. 8.) After separation from service, his feet swelled and he limped. (t. 10.) He could no longer now walk even a block. (t. 11.) He was required to use a cane since his hip surgery. He did not have any injuries to his ankles or hip after service. (t. 12.) His shoes had worn unevenly since service. (t. 13.) At orthopedic VA examination in November 1992, the veteran stated that his foot problems were caused by a forced march in Northern Ireland in service. He recalled that he sprained both ankles on that march and has had progressive ankle problems ever since, with frequent pain and swelling. He reported pain in his ankles as he walked the malls and that he had been given a brace for the right ankle. On examination, the arches of the feet were moderately well maintained at rest but disappeared on weight bearing. This was said to indicate flexible flat feet. The right ankle dorsiflexed to 25 degrees, plantar flexed to 60 degrees, pronated to 15 degrees, and supinated to 10 degrees. The left foot dorsiflexed to 30 degrees, plantar flexed to 65 degrees, pronated to 15 degrees, and supinated to 10 degrees. The right ankle had tenderness over the distal medial and lateral malleolus. X-rays of the feet and ankles at that time were said to show no significant change from February 1992. The veteran reported that the left hip started to bother him 3 to 5 years before and that he had progressively more severe pain with walking over time. A left total hip replacement had been performed in 1992. The veteran asserted that his hip surgeon had told him that his hip problem was caused by his foot and ankle problems. Since his surgery, he had only occasional hip pain at extremes of ranges of motion. The left lower extremity was about 5 millimeters shorter than the right when measured at the medial malleoli. Left hip flexion was to 110 degrees, abduction was to 40 degrees, internal rotation was to 30 degrees, and external rotation was to 45 degrees. A November 1992 X-ray showed his left hip replacement, which appeared to be in good position. The veteran was noted to walk with a cane and an abnormal gait, the gait abnormality being primarily due to his right ankle brace. After review of the evidence, the Board finds that there is no objective evidence of any ankle sprain in service, nor of any arthritis of the ankles or left hip for years after service. The issue is whether the veteran's arthritis of the ankles or left hip began in or are otherwise attributable to service or to pes planus. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.307, 3.309, 3.310. The answer to this question requires medical findings because these disorders first became manifest years after service. The Board's decision makers "may consider only independent medical evidence to support their [medical] findings." Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). The veteran, as a medically untrained person, is not qualified to render an opinion of evidentiary weight as to the etiology of his arthritis. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The medical treatment records and the VA examinations are silent for any etiological link between the veteran's post- service arthritis of the ankles or left hip and service or pes planus. In November 1992, the examiner declared he would be unable to comment on the etiology of ankle and hip arthritis. Under the circumstances of this appeal, competent evidence of an etiological relationship between arthritis of the ankles or left hip and service or pes planus must be presented in order for the claims to be well grounded. Such evidence is not of record. Accordingly, the claims are not well grounded, and no further duty to assist in the developments of these claims, or to address the related arguments, arises. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). See Jones v. Brown, 7 Vet.App. 134 (1994). The Board has concluded that the facts in this appeal are clearly distinguishable from those presented in Obert v. Brown, 5 Vet.App. 30 (1993). II. INCREASED RATING Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claim is well grounded and adequately developed. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Different diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A 10 percent rating is warranted for bilateral pes planus where there is moderate disability, characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, and pain on manipulation and use of the feet. A 30 percent rating is assigned for bilateral pes planus when it is severe, such as with objective evidence of marked deformity such as pronation, abduction, etc., accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5276. The Board has considered the relevant evidence. While the veteran's feet are painful with walking, the objective clinical evidence is that the foot disability due to his bilateral pes planus is no more than moderate in severity. The Board recognizes that the May 1986 VA examination showed slight forefoot varus and slight pronation. However, there are no deformities such as pronation, abduction, etc., which could be described as marked, objective indications of swelling on use or of accentuated pain on manipulation and use, or characteristic callosities. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5276. Instead, the feet are described as flat but flexible. The veteran's functional use of his feet on clinical examination, aside from the effects of his nonservice-connected arthritis of the ankles, is nearly normal. The Board notes that in February 1992 his inability to ambulate distances was attributed not to pes planus but to his arthritis of the ankles and left hip, and that in November 1992, his abnormal gait was attributed to his right ankle. III. ADDITIONAL CONSIDERATION The Board has also considered the pertinent provisions of 38 C.F.R. Parts 3 and 4 and 38 C.F.R. § 3.321(b)(1). In this regard, the veteran's pes planus is not so unusual or extraordinary as to warrant extraschedular rating. For example, it does not result in marked impairment with employment or in frequent hospitalization. Thus, the regular rating schedule applies to the evaluation of the disorder. ORDER The claims for service connection for arthritis of the ankles and left hip are dismissed. A rating in excess of 10 percent for bilateral pes planus is denied. JOHN E. ORMOND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.