Citation Nr: 0007659 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 95-27 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of burns, to include scars, on the right foot. 2. Entitlement to service connection for right knee disorder. 3. Entitlement to service connection for psychiatric disorder, other than post traumatic stress disorder or schizophrenia. 4. Entitlement to compensable evaluation for residuals, burn dorsum of left foot. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from September 1942 to January 1944, and from August 1944 to February 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from November 1994 and October 1995 rating decisions of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In the November 1994 rating decision, the RO continued the noncompensable evaluation for residuals, burn dorsum of left foot and determined that the appellant had not submitted new and material evidence to reopen the claim for service connection for schizophrenia. In the October 1995 rating decision, the RO denied service connection for burns and scars on the right foot and for a right knee disorder. FINDINGS OF FACT 1. Competent evidence of a nexus between the scars on the right foot and service is not of record. 2. Competent evidence of a nexus between a right knee disorder and service is not of record. 3. Competent evidence of a nexus between the a psychiatric disorder other than post traumatic stress disorder or schizophrenia and service is not of record. CONCLUSIONS OF LAW 1. The claim for service connection for residuals of burns, to include scars, on the right foot is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for right knee disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for psychiatric disorder other than post traumatic stress disorder or schizophrenia is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that service connection for residuals of burns, to include scars, on his right foot should be granted. The appellant is service connected for residuals of burns on his left foot that he sustained when hot water spilled on his left foot. He now claims that he injured his right foot and that his right foot was burned more than the left foot. Additionally, the appellant claims that service connection for right knee disorder is warranted. He states that he injured his right knee as a result being hit by a ricocheting stone from an explosion caused by a German bazooka (panzerfaust) round that hit a jeep. He states that he was treated for right knee complaints right after service. With regard to his mental disorders, he states that he began having problems with the war while he was in service and was treated within one year following service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Additionally, certain chronic diseases, including arthritis, cardiovascular diseases, and psychoses may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The initial question which must be answered in this case, however, is whether the appellant has presented a well- grounded claim for service connection. The claimant has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual" that a claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to his claim, and the claim must fail. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). To establish that a claim for service connection is well grounded, a claimant must demonstrate "medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury." See Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Grottveit, 5 Vet. App. at 93. The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). The United States Court of Appeals for Veterans Claims (the Court) has stated that, alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic disease or injury either in service or during an applicable presumption period and that the veteran still has such disability. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. Id. If the chronicity provision does not apply, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. The service medical records reveal that the appellant sustained a burn to the dorsum of his left foot on May 11, 1943. The medical record is silent as to the right foot. The examiner noted that the appellant had second-degree burns on the left foot due to hot water falling on it. By May 23, 1943, the examiner stated that recovery was "uneventful." By May 24, 1943, the appellant was placed back on duty. In a January 1944 service record, the examiner stated that the appellant was physically qualified but that he was not psychologically adapted for service. In March 1945, the appellant was hit in the right knee with a piece of stone that had chipped off from a bazooka that had exploded 25 yards away from him. The following day, the appellant reported that his knee felt better. Examination of the right knee was negative. In the separation examination, dated February 1946, clinical evaluation of the skin revealed findings as to the appendectomy scar, but no other scars. Examination of the feet and musculoskeletal system were normal. Post service medical records include a December 1946 examination report which entered a diagnosis of psychoneurosis. Thereafter, there is a February 1976 letter from a Dr. M. J. Loizzo who stated that he had initially seen the appellant in June 1973 with complaints of anxiety, depression, difficulty sleeping, and fears of illness and death. The appellant reported that these feelings had begun in December 1972. In a December 1975 private medical record, the appellant was diagnosed with paranoid schizophrenia. The appellant was hospitalized in January 1977 with a diagnosis of manic depressive illness. In June 1977, the appellant was diagnosed with schizophrenia and schizoaffective disorder. Private medical records, dated October 1993 to February 1994, reveal that the appellant was seen with right knee pain. The diagnoses are illegible; however, for purposes of determining whether the claim is well grounded, the Board will construe such diagnoses as evidence of a current right knee disorder. The appellant had an RO hearing in April 1995. He stated that his right foot was injured more from the hot water burn than the left one. He stated that the left foot was not burned seriously, but that the right one received second degree burns. The appellant testified that if he stood on his feet too long, he had pain. He stated that it interfered with his ability to walk in that he could not walk far. The appellant stated that he was not undergoing medical treatment for his feet. As to his nervous condition, the appellant stated that after the war ended in Europe, he had bad dreams. He stated that he was given 10 sessions for psychiatric treatment immediately following service. The appellant's spouse stated that the appellant was treated right after service for psychiatric problems and that he had been hospitalized in 1975 or 1976 for psychiatric problems. In a June 1995 VA outpatient treatment report, the appellant reported discomfort in his feet. He reported that he had sustained burns on his feet. The VA examiner stated that the appellant had small scars present on the right and left feet. The appellant underwent a VA psychiatric evaluation in March 1997. The VA examiner entered a diagnosis of post traumatic stress disorder, and stated that the appellant did not have schizophrenia or schizoaffective disorder. Service connection for post traumatic stress disorder was granted during the pendency of this appeal. I. Scars from burns on the right foot. After having reviewed the evidence of record, the Board finds that the appellant has not submitted a well-grounded claim for service connection for scars from burns on the right foot. See Epps v. Gober, 126 F.3d 1464. The appellant has alleged that when he burned his left foot in service, he burned his right foot as well. The service medical records specifically state that the appellant burned his left foot. The service medical records are silent as to the right foot. The appellant is competent, however, to state that he burned his right foot in service. However, he is not competent to relate the current finding of small scars on the right foot to a burn he sustained in service. See id. Thus, he has not brought forth competent evidence of a nexus between the current finding of scars on the right foot and service, and the claim is not well grounded. See id. Although the appellant has alleged that his current scars on the right foot are related to service, it has not been shown that he possesses the requisite knowledge of medical principles that would permit him to render an opinion regarding matters involving medical diagnoses or medical etiology, See Espiritu v. Derwinski, 4 Vet. App. 292, 494 (1992); see also Edenfield v. Brown, 8 Vet. App. 384, 388 (1995) (en banc) ("[w]here the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is ordinarily required to fulfill the well- grounded claim requirement of section 5107(a)"). II. Right knee disorder After having reviewed the evidence of record, the Board finds that the appellant has not submitted a well-grounded claim for service connection for right knee disorder. See Epps v. Gober, 126 F.3d 1464. The appellant has stated that he injured his right knee in service, which is substantiated by the service medical records. The Board has determined that the private medical records that address the appellant's knee indicate that he has a current right knee disorder. The appellant's claim fails in that he has not brought forth competent evidence of a nexus between the current right knee disorder and service. Thus, the claim is not well grounded. See id. The Board is aware that service connection for post-traumatic stress disorder has been granted based upon stressors that the appellant encountered while engaged in combat, and thus the appellant is entitled to the application of 38 U.S.C.A. § 1154(b) (West 1991). However, that statute assists the combat veteran in establishing service incurrence or aggravation of a disease or injury-it does not constitute a substitute for a current disability and a nexus between the current disability and service when determining whether a claim is well grounded. Kessel v. West, 13 Vet. App. 9 (1999). Thus, the appellant's combat status does not serve to well ground his claim for service connection for right knee disorder. See id. Although the appellant claims that his current right knee disorder is related to the incident in service, it has not been shown that he possesses the requisite knowledge of medical principles that would permit him to render an opinion regarding matters involving medical diagnoses or medical etiology. See Espiritu, 4 Vet. App. at 494; see also Edenfield, 8 Vet. App. at 388. III. Psychiatric disorder As mentioned above, the RO granted service connection for post traumatic stress disorder during the pendency of this appeal. Further, it is noted that service connection for schizophrenia, paranoid type, was previously and finally denied by the RO in 1976. However, as the appellant's present claim alleged service connection for mental disorders in general, with the primary emphasis on the claim seeking entitlement to service connection for post traumatic stress disorder, now granted, the Board will proceed to further appellate disposition on the psychiatric disorder as a new claim seeking entitlement to service connection for a mental disorder other than post traumatic stress disorder or schizophrenia, based on the contentions of the appellant. After having reviewed the evidence of record, the Board finds that the appellant has not submitted a well-grounded claim for service connection for psychiatric disorder, other than post traumatic stress disorder or schizophrenia. See Epps v. Gober, 126 F.3d 1464. The appellant has not brought forth evidence of "psychosis" within one year following service. Additionally, the appellant has not brought forth competent evidence of a nexus between any current diagnoses of a mental disorder other than post traumatic stress disorder or schizophrenia and service. Although a diagnosis of psychoneurosis was entered in December 1946, which was within one year following the appellant's discharge from service, a diagnosis of "psychosis" is nevertheless not shown by the record evidence, and thus is not entitled to presumptive service connection. See 38 U.S.C.A. § 1101 (West 1991). Although the appellant has stated that he believes that the symptomatology he had at the times that the above diagnoses were entered was related to service, it has not been shown that he possesses the requisite knowledge of medical principles that would permit him to render an opinion regarding matters involving medical diagnoses or medical etiology. See Espiritu, 4 Vet. App. at 494; see also Edenfield, 8 Vet. App. at 388. IV. General duty Although the VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim when it is determined to be not well grounded, it may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Here, VA fulfilled its obligation under section 5103(a) by issuing a statement of the case in March 1995 and December 1995 and numerous supplemental statements of the case. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996); Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's duty is just what it states, a duty to assist, not a duty to prove a claim). The Board is not aware of the existence of additional relevant evidence that could serve to make the appellant's claims for service connection well grounded. It is noted that in an April 1994 statement, the appellant stated, in a manner of relating general factual background information, that he had been awarded social security disability benefits in 1977-79. However, as he has not ever claimed or contended how any related records for this period of disability payments from another government agency were relevant in any manner to the claims under consideration, no further sec. 5103(a) duty to develop the claims that have been denied as not well grounded under the nexus standard is indicated. As indicated above, the duty to assist if not a duty to prove a claim; the Board believes that the claimant must at a minimum, aver the relevancy of evidence that is otherwise not in the constructive possession of VA (like VA medical records, see Bell v. Derwinski, 2 Vet. App. 611 (1992)). For these reasons, the Board views its discussion as sufficient to inform the appellant of the elements necessary to well ground his claims and to explain why his current attempt to establish service connection fails. ORDER Service connection for residuals of burns, to include scars, on the right foot, is denied. Service connection for right knee disorder is denied. Service connection for psychiatric disorder, other than post- traumatic stress disorder or schizophrenia, is denied. REMAND The appellant contends that his left foot disability (residuals, burn dorsum of left foot) causes him discomfort. As the record does not reflect that the RO has scheduled a VA examination to determine the current severity of this disability in connection with this claim, a remand is in order. As the claim is well grounded in light of the aforementioned contentions, see Proscelle v. Derwinski, 2 Vet. 629 (1992), the duty to assist includes the duty to develop the pertinent facts by conducting a current and thorough medical examination. See 38 C.F.R. § 3.159 (1999); see also Littke v. Derwinski, 1 Vet. App. 90 (1990). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO is to schedule the appellant to undergo a VA examination to determine the current symptomatology for the service-connected residuals, burn dorsum of left foot. All appropriate diagnostic tests and studies deemed necessary by the examiner to assess the severity of this disability should be conducted. All pertinent symptomatology and medical findings should be reported in detail. 2. Upon completion of the above, the RO should readjudicate the claim, with consideration given to all of the evidence of record, including any additional medical evidence obtained by the RO on remand. In this regard, the RO is advised to consider carefully and with heighten mindfulness the benefit of the doubt rule. 38 U.S.C.A. § 5107(b) (West 1991). If the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The case should be returned to the Board after compliance with all requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals