Citation Nr: 0007266 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 97-30 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for the residuals of a right knee injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from August 1941 to October 1945. He received the Purple Heart medal. This matter comes before the Board of Veterans' Appeals on appeal of a July 1997 rating decision of the Pittsburgh, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The rating decision denied the veteran's claim of entitlement to service connection for an injury to his right knee. The veteran submitted a notice of disagreement with that rating decision subsequently in July 1997. In August 1997, the RO provided him with a statement of the case. The veteran filed his substantive appeal subsequently in August 1997. Initially, the veteran had also appealed the RO's determination of two other claims in the July 1997 rating decision. Those were a claim of entitlement to service connection for residuals of a shell fragment wound to the right arm and a claim of entitlement to service connection for post-traumatic stress disorder (PTSD), for which service connection was granted but with a noncompensable evaluation. Both claims were redetermined by the RO in a March 1999 rating decision, which granted service connection for the residuals of the shell fragment wound to the right arm, evaluated as 20 percent disabling, and increased the original evaluation of the veteran's PTSD to 10 percent. Subsequently, in a rating decision issued in October 1999, the RO increased the original evaluation of the veteran's PTSD to 30 percent. In July 1999, the veteran withdrew his appeals as to those claims. FINDINGS OF FACT The evidence of record does not make a plausible showing that the veteran's current right knee condition is related to his active service. CONCLUSION OF LAW A well-grounded claim of entitlement to service connection for the residuals of a right knee injury has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background With the exception of sick call reports for April 1942-June 1942, none of the veteran's service medical records were present in the claims file. The RO was informed by the National Personnel Records Center in St. Louis, Missouri (NPRC) in January 1997 that the records were unavailable and presumed destroyed by the 1973 fire there. The sick call reports showed that the veteran was hospitalized for 27 days during the period that they cover, but they did not specify the reason. The veteran filed his claim in September 1996. In statements he gave in connection with this claim, the veteran indicated that he injured his right knee during service. In his September 1996 Application for Compensation or Pension, the veteran wrote that he had injured his right knee in 1941 and was treated for this injury between 1941 and 1945 at an Army hospital in Fort Jackson, South Carolina. The report of a VA examination performed upon the veteran in December 1996 stated that the veteran gave a history of having injured his right knee joint during a sports competition in basic training and having underwent a closed reduction for the injury in 1941. The examination report also stated that the veteran gave a history of having received shrapnel injury to his right shoulder in Germany in 1945. (The Board notes that later in the examination report, the examiner appeared to confuse the injuries and wrote that the right shoulder injury occurred in basic training and that the right knee injury was caused by shrapnel. This is an obvious error. It is inconsistent with all other evidence and statements of record, including the veteran's statements.) The report of a VA examination that the veteran underwent in May 1998 documented that the veteran gave a history of having fallen on and injured his right knee at the time he sustained the shell fragment wound to his right arm in Germany and of having been treated in a hospital for approximately a week for both injuries. The report indicated that the veteran had said that his right knee had become dislocated and that treatment consisted of putting it back to its normal position. The discharge summary for the veteran included in the claims file established that he sustained that wound in action on March 12, 1945 in Germany. The report of another VA examination afforded to the veteran in April 1999 for evaluation of his service-connected PTSD reflected that the veteran asserted that in receiving the shell fragment wound to the right shoulder, he was thrown up into the air and landed on his right knee. In the Form 646 that was submitted in October 1999, the representative of the veteran repeated this account and implied that the veteran had been treated in the hospital not only for the right arm injury but also for the re-injured right knee. The veteran was afforded two VA examinations in connection with this claim of entitlement to service connection for a right knee injury. The first examination, which was conducted in December 1996, resulted in a diagnosis of post- traumatic arthritis of the right knee. X-rays of both knees taken in connection with this examination showed that the veteran had osteoarthritis in both knees and that it was of greater severity in the right. On the second VA examination, which was conducted in May 1998, the veteran was diagnosed with moderate to severe degenerative joint disease in both knees, with narrowing of the medial compartments of both joint spaces with the possibility of internal derangement of the knees. It was found that there was calcification of both menisci and the articular cartilage of both knees consistent with chondrocalcinosis and that the veteran also had generalized osteoporosis. The veteran submitted no private medical records to the RO. On his September 1996 Application for Compensation or Pension, the veteran indicated that he had received no private medical treatment for residuals of his right knee injury since service. Subsequently, on the Form 646 submitted in October 1999, the veteran's representative indicated the veteran had received a "total knee replacement," although whether this involved both knees or only the right was not specified. II. Analysis In general, service connection can be awarded for disability resulting from personal injury or disease incurred or aggravated during active service or an applicable presumptive post-service period. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1117, 1131, 1133 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306, 3.307, 3.308, 3.309 (1999). With chronic disease shown as such in service (or within the applicable post-service presumptive period under 38 C.F.R. § 3.307), 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) (1999). If a disability is not shown to be chronic during service or an applicable post-service presumptive period, service connection may nevertheless be granted where a disorder has been observed in service or an applicable post- service presumptive period and the symptomatology associated with that disorder is manifested with continuity post- service. Id. Regulations also provide that service connection may be granted for a disease diagnosed after discharge from service where all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). However, a person who submits a claim for benefits under a law administered by the Secretary shall have the initial 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). The Secretary shall assist a claimant in developing facts pertaining to a well-grounded claim. Id. The issue before the Board on this appeal is whether the veteran has established such a claim. A well-grounded claim need not be established conclusively for the claimant's initial burden of producing evidence to be met. It is sufficient if the evidence of record establishes a plausible claim, one which is either meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In particular, the evidence of record must show: a current disability; the incurrence (or, in the case of preexisting conditions, the aggravation) of an injury or disease during service; and a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Evidence of record will be accepted as credible 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 evidentiary source. King v. Brown, 5 Vet. App. 19 (1993). However, incompetent evidence will not be considered in an assessment of whether a claim is well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1993). When the issue is medical in nature, such as medical etiology or diagnosis, expert medical evidence is required. Caluza, 7 Vet. App. at 506; Voerth v. West, 13 Vet. App. 117 (1999). Turning to the veteran's claim of entitlement to service connection for right knee injury, the Board finds that the claim is not well-grounded. Sufficient competent evidence of current disability, the first element of a well-grounded claim, is of course supplied by the medical diagnoses documented in the record. As to the second element of a well-grounded claim, incurrence (or aggravation) of disease or injury during service, there is no evidence of record to show that the veteran injured his right knee during service. However, it is provided by statute that [i]n the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of such service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991) (emphasis added); see also 38 C.F.R. § 3.304(d) (1999). The veteran and his representative contend that the veteran injured (or re- injured) his right knee in 1945 while under enemy fire in Germany. The record documented that initially, the sum of the veteran's account was that he injured his right knee during basic training and received treatment for that injury between 1941 and 1945 in the United States. These were the statements that the veteran made in his September 1996 Application for Compensation or Pension. Later, the veteran averred that he re-injured the knee by falling on it, that this injury occurred simultaneously with his injuring his right shoulder while under enemy fire in Germany. The first documentation of this account is contained in the report of the veteran's May 1998 VA examination. Because of the inconsistencies between the veteran's accounts, the Board is of the opinion that his statements do not represent the "satisfactory" lay evidence that would lead to the conclusion that the injury in question was incurred during combat. "Satisfactory evidence" for the purpose of 38 U.S.C.A. § 1154(b) is evidence that is credible and is therefore sufficient to produce a belief that the matter asserted is true. See Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996). Therefore, the veteran's claim of entitlement to a statutory presumption that that he incurred a right knee injury during service cannot be established on the basis of the veteran's statements. In addition, even if the statutory presumption had been accorded to the veteran, his claim would fail unless the record contained competent evidence of a causal relation between his current right knee disability and the injury incurred during service. See Kessel v. West, 13 Vet. App. 9, 14-17 (1999); Wade v. West, 11 Vet. App. 302, 304-05 (1998); Caluza v. Brown, 7 Vet. App. at 507-08. Such nexus evidence is the third necessary element of a well-grounded claim. Because the existence of a nexus between a past and present physical condition is a medical proposition, only medical evidence would be competent to establish its possible truth. Voerth v. West, 13 Vet. App. 117. Here the record is devoid of such evidence. Therefore, the Board finds that a well- grounded claim has not been presented. Accordingly, the veteran's appeal must be denied. ORDER As a well-grounded claim of entitlement has not been presented, service connection for the residuals of a right knee injury is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals