BVA9503619 DOCKET NO. 92-56 656 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a right leg and hip disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1944 to September 1946. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim of entitlement to service connection for a right leg and hip disability. In February 1992, the veteran received a personal hearing at the regional office (RO) before a member of the Board of Veterans' Appeals who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). At that hearing, the veteran testified that he injured his right leg, hip, and foot during service and that shortly after his discharge from service he received treatment for his leg condition. Hearing transcript at 2-7. In addition, the veteran testified that he has experienced instability in his right leg and hip ever since the initial in-service injury and that his right foot drags. Id. at 7. Furthermore, the veteran testified that, ever since the initial in-service injury, he has experienced pain from his right hip to his right foot and numbness in his right foot. Id. at 9. Consequently, he asserts that he is entitled to service connection for a right leg and hip disability. DECISION OF THE BOARD The 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 files. 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 preponderance of the evidence is against the claim of entitlement to service connection for a right leg and hip disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. A right leg and hip disability was not shown in service, was first demonstrated years after service, and is not causally or etiologically related to the veteran's service-connected flat feet disability. CONCLUSION OF LAW A right leg and hip disability was not incurred in or aggravated by service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. The Board notes that at the February 1992 personal hearing the veteran testified that he received treatment for his leg condition shortly after his discharge from service. Hearing transcript at 5-6. Pursuant to this testimony, the Board remanded the case in January 1993 to obtain and to associate with the claims files the medical records of treatment that the veteran allegedly received soon after his discharge from service. Any available post-service medical records, which mostly included private medical statements submitted by the veteran, were associated with the claims file. In addition, a review of the claims files indicates that several attempts were made prior to the present appeal to obtain all available service medical records. All available service medical records have been obtained and associated with the claims folders. Consequently, the Board concludes that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). Initially, the Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). In addition, the laws and regulations state that, where a veteran served continuously for 90 days or more during a period of war, and arthritis becomes manifest to a degree of 10 percent or more within one year after the veteran's separation from such service, such disease will be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Despite the veteran's contentions that he injured his right lower extremity several times during service (see, hearing transcript at 2-7), the service medical records contain no evidence of complaints of, treatment for, or findings of any residuals of injuries to the right lower extremity. The veteran submitted a copy of an in-service examination which was conducted in October 1945. The veteran annotated on this copy that the physician advised him that his right leg was shorter than his left leg and that he had a pelvic tilt on his right side. Significantly, however, the physician did not indicate on this examination report any abnormality of the veteran's right lower extremity or hip. Moreover, the post-service medical records do not confirm the veteran's testimony that he continued to experience problems with his right leg and hip shortly after his separation from service. Id. at 5-7. In February 1951, the veteran underwent a military examination which was negative for complaints of, treatment for, or findings of a right leg or hip disability. A VA examination conducted in July 1956 demonstrated that the veteran's musculoskeletal system was normal except for second degree pes planus. No abnormalities of the right leg or hip were found. According to outpatient treatment records dated in 1984, the veteran complained of recurrent pain in his right leg and hip. At a VA examination conducted in June 1984, the diagnosis of degenerative joint disease of the right hip was made. However, the basis supporting this diagnosis is unclear. A review of this examination report appears to indicate that X-rays of the veteran's right hip were not taken. Subsequently, a physical examination conducted at a VA hospitalization in February 1989 showed mild iliopsoas weakness of the lower extremities. The examiner specifically stated that the veteran's right lower extremity was weaker than his left lower extremity. In any event, even if the Board were to assume that the diagnosis of degenerative joint disease of the right hip was confirmed by X-rays in 1984, this disability was not demonstrated until many years after the veteran's separation from service. Moreover, the mild iliopsoas weakness of the veteran's right lower extremity was not found until February 1989, which was also many years after his discharge from service. The Board notes that, pursuant to the present appeal, the veteran submitted a copy of a December 1959 letter from Dr. William Argo. In this letter, Dr. Argo stated that he had treated the veteran for seven years. Although this letter indicates that the veteran had been receiving medical treatment since approximately 1952, the letter does not specifically state the disabilities for which he had received treatment since 1952. Consequently, it does not appear that the veteran complained of, or received any treatment for, a right lower extremity or hip disability until many years after his separation from service. At the most recent VA examination, which was conducted in July 1994, the veteran complained of considerable discomfort on any ranges of motion about the right hip. The examiner found fairly good ranges of motion to both knees and ankles and no evidence of gross deformity about the knees or ankles. According to the examination report, there was evidence of a moderate footdrop in the right foot, dorsiflexion in the ankles was accomplished to 10 degrees on the right and 20 degrees on the left, volar flexion was 25 degrees on the right and 35 degrees on the left, and the veteran exhibited a moderately severe bilateral pes planus. Circumference measurements were 15 inches bilaterally of the knees, fourteen-and-a-half inches on the right calf and 15 inches on the left calf, and 10 inches bilaterally on the ankles. The examiner noted that the veteran walked with a fairly normal gait and with a slight limp on the right leg. Examination of the veteran's nervous system demonstrated that all modalities of sensation and motor power were intact and active, except for moderate hypoesthesia generally extending from the right lateral hip region, along the right lateral thigh and right lateral calf region, to the dorsum of the right foot. The tendon reflexes were somewhat sluggish but equal and active bilaterally. The diagnosis of right leg radiculopathy and foot drop was made. Significantly, no chronic right hip disability was found. Moreover, although the examiner diagnosed right leg radiculopathy and foot drop, he did not state that this disability is related to any in-service episode. In fact, the examiner expressed his opinion that the veteran's right lower extremity disability was associated with the veteran's chronic lumbar discogenic disease. The veteran is not service-connected for a low back disorder and service connection for a low back disorder has been denied. In addition, numerous post service outpatient treatment records have been received pursuant to the current appeal. Significantly, none of the records of treatment that the veteran received for his right lower extremity and hip, except for a June 1994 letter from Dr. Thomas Penman, included any medical opinions concerning the etiology of the veteran's right leg and hip disability. According to the June 1994 letter from Dr. Thomas Penman, this physician examined the veteran in April 1994. At the time of the examination, the veteran reported that he incurred an injury in 1944 while in basic training and that ever since that injury he experienced chronic pain in his right foot, leg, hip, and back; numbness in his right leg; unsteadiness in his gait; and right foot drop. Examination demonstrated weakness of the right posterior tibial muscle, some atrophy of the peroneal muscles on the right side, a slightly antalgic gait, and a tender callus under the third left metatarsal head. Dr. Penman diagnosed probable L4 radiculopathy and mixed polyneuropathy and related the veteran's weakness and abnormal gait with the radiculopathy. In this letter, Dr. Penman also concluded that it seemed likely that the veteran's symptoms are related to the injury he suffered in 1944. Significantly, however, Dr. Penman appeared to base this conclusion on statements made by the veteran himself. Dr. Penman stated that, "given the history," the veteran's symptoms are likely related to the 1944 injury. According to the letter, the veteran brought records of medical treatment and examinations that he had previously received, but these records apparently were fairly recent records of outpatient treatment and of examination. Dr. Penman did not state that he reviewed medical records of treatment that the veteran received for a right leg and hip disability either during or immediately after service. The United States Court of Veterans Appeals (Court) recently held that a physician's heavy reliance on a veteran's recitation of his own medical history is a circumstance which makes the physician's conclusion that the veteran's prior injuries caused his current disability less persuasive. Cahall v. Brown, No. 93-773, slip op. at 7 (U.S. Vet.App. Dec. 19, 1994); See also, Reonal v. Brown, 5 Vet.App. 458, 460 (1993). In the present case, Dr. Penman's conclusion that the veteran's present symptoms are related to the alleged 1944 injury was based entirely on statements that the veteran himself made regarding his medical history. Consequently, the Board finds that Dr. Penman's opinion regarding the etiology of the veteran's present right leg and hip disability is not persuasive. In addition, the Board concludes that there is no medical evidence to support the veteran's contention that his present right leg and hip disability is the result of a 1944 in-service injury. Moreover, the regulations provide that service connection will be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). The veteran has raised the contention that his right leg and hip disability is the result of his service-connected flat feet. However, the veteran has submitted no medical evidence to support this contention. None of the medical records received pursuant to the present appeal contain any medical opinions which relate the veteran's present right lower extremity disability with his service-connected flat feet disability. The Court has specifically stated that, where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to make the claim possible, and lay testimony alone will not suffice. Grottviet v. Brown, 5 Vet.App. 91, 93 (1993); See also, Magana v. Brown, No. 93-556, slip op. at 5-6 (U.S. Vet.App. Dec. 14, 1994) and Jones (Wayne L.) v. Brown, No. 93-315, slip op. at 5 (U.S. Vet.App. Nov. 14, 1994). Consequently, the Board concludes that the veteran's assertions that his right leg and hip disability was caused by his service-connected flat feet disability are not persuasive. ORDER Service connection for a right leg and hip disability is denied. WILLIAM J. REDDY 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.