Citation Nr: 0000117 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 99-09 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bilateral leg disorder. WITNESSES AT HEARING ON APPEAL Appellant, Becky Bowman ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served in the Army National Guard of Mississippi from February 1971 to February 1977, with a period of active duty for training from June 1971 to November 1971. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 1998 by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). A video conference hearing was held September 28, 1999 before the undersigned Board member. FINDING OF FACT A current bilateral leg disability is not shown. CONCLUSION OF LAW The claim of entitlement to service connection for a bilateral leg disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order 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. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). As stated above, the first element of a successfully well grounded claim requires medical evidence of a current disability. In his VA Form 21-526 (Veteran's Application for Compensation or Pension) filed in March 1998, the veteran describes his condition as follows: "Pain in legs, which has worsened over the years and causes me not to be able to stand, walk and run for long periods of time. First noticed in basic training in 6-71." When asked about his condition at the video conference hearing, the veteran indicated that the pain is primarily located in the joints of his legs. Transcript of Hearing (Transcript) at page 5. He further states that he experiences swelling and pain so pronounced in his kneecaps that he cannot touch them without discomfort. Transcript at page 10. The veteran submitted to a VA medical examination in March 1998 and informed the examining provider about his symptoms, the particulars of which are summarized in the examination report as follows: "[The veteran] claims to have pain in the anterior aspect of both legs from the tibial tubercle down about 6 or 8 inches. This is present in both legs to some degree all of the time. It is worse when he extends his knees. For the past 2 months, he has been using a walking cane." The results of the examination indicate that the provider found no swelling or effusion in either knee and no quadriceps atrophy in either leg. Additionally, the veteran's collateral ligaments were found to be "stable to varus and valgus stress in extension and 30 degrees of flexion." Anterior and posterior drawer tests were negative, indicating satisfactory integrity of the cruciate ligaments of both knees. An x-ray examination revealed no bony abnormalities and further indicated that the articular cartilage was of normal height and that there were no osteophytes or loose bodies. The examination provider concluded his report with the following impression: "I can find on physical and x-ray examination no objective evidence of organic pathology to explain this patient's symptoms." The Board notes that there is no evidence that any other examination of the veteran occurred which sought to diagnose the symptoms he was experiencing in his legs. Absent medical evidence of a current disability, the Board must find that the first Caluza element of a well grounded claim is not satisfied and, therefore, that the veteran's claim in this case for service connection for a bilateral leg disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Board must again point out that its duty to assist the veteran in the development of his claim, as stipulated in 38 U.S.C.A. § 5107(a) does not arise until a claim is shown to be well grounded. The Board also notes that the veteran is free to submit new and material evidence, and reopen his claim for service connection, at any time. ORDER A claim for entitlement to service connection for a bilateral leg disorder is not well grounded, and is accordingly denied. M. W. GREENSTREET Member, Board of Veterans' Appeals