Citation Nr: 0004595	
Decision Date: 02/23/00    Archive Date: 02/28/00

DOCKET NO.  92-14 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for a left knee 
disorder.

2.  Entitlement to service connection for a right knee 
disorder.

3.  Entitlement to service connection for a low back 
disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. L. Kane, Associate Counsel


INTRODUCTION

The appellant had active military service from July 1989 to 
December 1990.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 1991 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Indianapolis, Indiana, which, in pertinent part, denied the 
benefits sought.

In 1994, 1995, and 1997, the Board remanded these claims for 
additional development.  The RO complied with the Board's 
Remand instructions, and these claims are ready for appellate 
disposition.

In 1994, 1995, and 1997, the Board also remanded a claim for 
service connection for sinusitis.  However, a rating decision 
of November 1999 granted service connection for sinusitis and 
assigned a 10 percent disability rating for this disorder.  
The appellant has not indicated disagreement with that 
decision, and this issue is not before the Board.  See 
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (The issue 
of the amount of compensation for a service-connected 
disability is a different issue than entitlement to service 
connection for that disability, and a second Notice of 
Disagreement must be filed by the veteran in order to 
initiate appellate review concerning the issue of 
compensation.)


FINDINGS OF FACT

1.  The appellant's left knee disorder existed prior to entry 
into service and is not the result of disease or injury in 
service, nor did it increase in severity due to his military 
service.

2.  The appellant's current back and right knee disorders are 
not shown to be related to disease or injury in service.  

CONCLUSIONS OF LAW

1.  The appellant's left knee disorder preexisted his entry 
into military service.  38 U.S.C.A. §§ 1111 and 1132 (West 
1991); 38 C.F.R. § 3.304(b) (1999).

2.  The appellant's left knee disorder was not aggravated by 
his military service, and service connection is therefore not 
warranted.  38 U.S.C.A. §§ 1110, 1111, 1131, 1132, and 1153 
(West 1991); 38 C.F.R. §§ 3.304 and 3.306 (1999).

3.  Service connection for low back and right knee disorders 
is not warranted.  38 U.S.C.A. §§ 1101, 1112, 1131, and 5107 
(West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all the evidence of record, which 
consists of:  (1) the appellant's contentions; (2) service 
medical records; (3) the reports of VA examinations conducted 
in 1991, 1995, 1996, and 1998; and (4) private medical 
records from G. William Grossman, M.D.; Healthsouth; United 
Chiropractic; and Family Care Chiropractic.  The evidence 
pertinent to each issue is discussed below.

Service connection means that the facts, shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred in the line of duty in the active 
military service or, if pre-existing such service, was 
aggravated during service.  38 U.S.C.A. §§ 1110 and 1131 
(West 1991); 38 C.F.R. § 3.303(a) (1999).  It is the 
responsibility of a person seeking entitlement to service 
connection to present a well-grounded claim.  38 U.S.C.A. 
§ 5107 (West 1991).

Generally, a well-grounded claim is a "plausible claim, one 
which is meritorious on its own or capable of 
substantiation."  Murphy v. Derwinski, 1 Vet. App. 78, 81 
(1990).  In order to be well grounded, a claim for service 
connection must be 

accompanied by supporting evidence that the particular 
disease, injury, or disability was incurred in or aggravated 
by active service; mere allegations are insufficient.  Tirpak 
v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy, 1 Vet. 
App. at 81.  In general, the appellant's evidentiary 
assertions are accepted as true for the purpose of 
determining whether a well-grounded claim has been submitted.  
King v. Brown, 5 Vet. App. 19, 21 (1993).

A claim for service connection requires three elements to be 
well grounded.  It requires competent (medical) evidence of a 
current disability; competent (lay or medical) evidence of 
incurrence or aggravation of disease or injury in service; 
and competent (medical) evidence of a nexus between the in-
service injury or disease and the current disability.  Epps 
v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied, 
sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. 
Brown, 7 Vet. App. 498, 506 (1995); aff'd 78 F.3d 604 
(Fed.Cir. 1996) (table).

The second and third Caluza elements can also be satisfied 
under 38 C.F.R. § 3.303(b) by (a) evidence that a condition 
was "noted" during service or during an applicable 
presumption period; (b) evidence showing post-service 
continuity of symptomatology; and (c) medical or, in certain 
circumstances, lay evidence of a nexus between the present 
disability and the post-service symptomatology.  Brewer v. 
West, 11 Vet. App. 228, 231 (1998); see also Savage v. Gober, 
10 Vet. App. 488, 495-97 (1997).  Alternatively, service 
connection may be established under 38 C.F.R. § 3.303(b) by 
evidence of (i) the existence of a chronic disease in service 
or during an applicable presumption period under 38 C.F.R. § 
3.307 and (ii) present manifestations of the same chronic 
disease.  Brewer, 11 Vet. App. at 231.

A.  Knee disorders

A veteran who served during a period of war or during 
peacetime service after December 31, 1946, is presumed to be 
in sound condition when he entered into military service 
except for conditions noted on his entrance examination.  

38 U.S.C.A. §§ 1111 and 1132 (West 1991); 38 C.F.R. 
§ 3.304(b) (1999).  The initial question that must be 
resolved in this case is whether either of the appellant's 
knee disorders preexisted his entry into active military 
service in 1989.  

In this case, the evidence clearly shows that the appellant 
had a left knee disorder prior to entry into service.  His 
pre-service treatment records showed that he injured his left 
knee in 1983.  Initial diagnoses were strain of left knee 
with possible internal derangement and probable 
chondromalacia.  In October 1983, he underwent arthroscopy of 
the left knee, which showed an incomplete tear of the 
anterior cruciate ligament.  Upon entry into service, the 
appellant reported the prior left knee surgery, and he had a 
mild genu varus deformity.  Therefore, the evidence clearly 
shows that his left knee disorder existed prior to his entry 
into service in 1989, and he is not entitled to the 
presumption of soundness for this knee.  

With respect to the right knee, however, the appellant's 
medical records prior to service only reference right knee 
pain in 1977, with no diagnosis of a chronic disorder.  The 
appellant had no complaints concerning his right knee upon 
entry into service, and no abnormalities of the right knee 
were noted.  Therefore, he is entitled to the presumption of 
soundness with respect to this knee.  Rather than evaluating 
the appellant's claim as entitlement to service connection 
for a bilateral knee disorder, the Board will assess each 
knee claim separately to reflect the fact that only one knee 
disorder existed prior to service.  For this reason, the 
issues on appeal have been recharacterized as shown above. 

1.  Left knee

Since the appellant's left knee disorder existed prior to his 
entry into service, the issue is whether it was aggravated by 
his period of active military service.  A preexisting injury 
or disease will be considered to have been aggravated by 
active service where there is an increase in disability 
during service.  Where the evidence shows that there was an 
increase in disability during service, there is a presumption 
that the disability was aggravated by service.  In order to 
rebut the presumption of 

aggravation, there must be clear and unmistakable evidence 
(obvious or manifest) that the increase in severity was due 
to the natural progress of the disability.  38 U.S.C.A. § 
1153 (West 1991); 38 C.F.R. § 3.306(a) and (b) (1999).  

There is no aggravation of a preexisting disease or injury if 
the condition underwent no increase in severity during 
service on the basis of all of the evidence of record 
pertinent to the manifestations of the disability prior to, 
during, and subsequent to service.  38 C.F.R. § 3.306(b) 
(1999).  The usual effects of medical and surgical treatment 
in service, having the effect of ameliorating disease or 
other conditions incurred before enlistment, will not be 
considered service connected unless the disease or injury is 
otherwise aggravated by service.  38 C.F.R. § 3.306(b)(1) 
(1999).  Intermittent or temporary flare-ups during service 
of a preexisting injury or disease do not constitute 
aggravation; rather, the underlying condition must have 
worsened.  Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

The medical evidence shows that the appellant's left knee 
disorder did not increase in disability during service.  
Examining the medical evidence prior to service, the 
orthopedic consultation in July 1989 showed that he had no 
functional limitations concerning the left knee.  Physical 
examination was completely negative.  Examining the medical 
evidence during service, the appellant complained of knee 
pain on two occasions (August 1990) out of seventeen months 
of service.  The only abnormality shown upon physical 
examination was slight movement of the left patella; 
diagnosis was chondromalacia patella.  His separation 
examination in December 1990 also showed full range of motion 
and no instability.  There was some patellar crepitus, and 
the examiner concluded that the appellant had chondromalacia 
patella with mild insufficiency, which was not considered 
disabling. 

The treatment the appellant received for his left knee during 
service was clearly an intermittent or temporary flare-up of 
the preexisting disorder, because the evidence does not show 
that the underlying condition had worsened.  Upon VA physical 
examination six months after his separation from service, 
there were no 

abnormalities of the left knee.  There was no deformity, 
edema, effusion, tenderness, or instability.  There was full 
range of motion, and all diagnostic tests were negative.  The 
diagnosis was probable patellar femoral syndrome.  The only 
abnormality upon VA examination in 1996 was mild crepitus, 
and the examiner stated that the appellant had no problems 
with his knee.  The only abnormalities upon VA examination in 
1998 were mild crepitus and mild varus malalignment.  

Therefore, review of the post-service medical evidence also 
does not disclose any evidence of aggravation of the 
appellant's left knee disorder.  Rather, the post-service 
findings support the conclusion that there was no increase in 
severity during service.  Any abnormalities of the left knee 
have been, at best, minimal, and no medical professional has 
indicated that the appellant's left knee disorder is worse as 
a result of his military service.  The evidence does not show 
that the appellant has been consistently treated for a 
chronic left knee disorder since his discharge from service 
nine years ago, so any symptoms he has experienced have not 
been so severe that he has found it necessary to seek 
treatment.  The fact that he has not sought medical treatment 
for this condition supports the conclusion that his 
preexisting left knee disorder was not aggravated by his 
active service.  Any contentions by the appellant that his 
left knee disorder was aggravated by his military service are 
not competent because he is not shown to have the requisite 
medical education to render such an opinion.  See Edenfield 
v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 
8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 
91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992).

All of the evidence of record in this case pertinent to the 
manifestations of the disability prior to, during, and 
subsequent to service shows that the appellant's preexisting 
left knee disorder underwent no increase in severity during 
service and was not aggravated by service.  Therefore, the 
preponderance of the evidence is against the claim for 
service connection for a left knee disorder.  This condition 
existed prior to service and was not aggravated during 
service because there is no competent evidence of an increase 
in the basic level of the preexisting disorder during 
service.  

2.  Right knee

It is unclear, initially, whether the appellant even has a 
chronic right knee disorder.  The evidence does not show that 
the appellant currently has an ascertainable disorder 
accounting for his complaints of right knee pain.  His 
complaints are symptoms only and do not constitute a 
diagnosed medical disorder.  The only "diagnoses" rendered 
during the recent VA examinations have been knee pain, which 
is a symptom only and not a recognized medical disorder.  See 
Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. 
December 29, 1999) (pain alone, without a diagnosed or 
identifiable underlying malady or condition, does not in and 
of itself constitute a disability for which service 
connection may be granted).

Upon VA examination in 1991, a diagnosis of probable patellar 
femoral syndrome was rendered.  This was not a definitive 
diagnosis, since it was probable, nor is it evidence that the 
appellant currently has a right knee disorder.  However, even 
if the Board accepts this "diagnosis" as sufficient 
evidence of a current disability, the claim is still not well 
grounded because there is no medical evidence of a nexus 
between the claimed right knee disability and the appellant's 
military service.

The appellant's service medical records showed treatment on 
two occasions for knee pain, as discussed above.  However, 
physical examinations at that time showed no abnormalities of 
the right knee, despite the fact that a diagnosis of 
chondromalacia patella was rendered.  VA examination six 
months after service showed no abnormalities of the right 
knee, despite the fact that diagnosis of probable patellar 
femoral syndrome was rendered.  VA examinations in 1996 and 
1998 have shown no abnormalities of the right knee other than 
mild crepitus.  

To establish service connection for a right knee disorder, 
however, there must be evidence of a nexus between the 
current disability and service.  In this case, there is no 
such evidence.  In fact, the VA examiner in 1998 concluded 
that it was unlikely that the appellant's right knee disorder 
was related to his military service.  This was in direct 
contrast to the VA examiner in 1996 who concluded that it was 
possible, 

but not probable, that the appellant's knee pain was directly 
related to his military service.  That opinion was based on 
the appellant's history, as opposed to the 1998 opinion that 
was rendered after review of the evidence, including the 
service medical records.  

During his VA examinations, the appellant made statements 
suggesting that he has had right knee pain since his military 
service.  He is certainly competent to report experiencing 
such symptoms.  Even accepting his statements as 
representative of continuity of symptomatology, there is no 
competent medical opinion of record showing that he currently 
has a chronic right knee disorder that is related to any 
prior symptoms he may have experienced.  Cf. Savage, 10 Vet. 
App. at 497.  Nor is nexus shown by post-service continuity 
of symptoms.  The post-service complaints of right knee pain 
are too remote from each other to support a finding that they 
represent continuity of symptomatology.  The appellant's 
contentions as to continuity of symptomatology, standing 
alone, would not be plausible in light of the absence of 
continuous symptomatology in the medical evidence of record 
since his separation from service.  See McManaway v. West, 13 
Vet. App. 60, 66-67 (1999).  He has been out of service for 
approximately nine years, and there is no evidence of 
treatment for his right knee during that time period.

Even accepting the appellant's contentions as true, he cannot 
meet his initial burden under 38 U.S.C.A. § 5107(a) by simply 
presenting his own opinion.  He does not have the medical 
expertise to render a probative opinion as to medical 
causation.  See Edenfield, 8 Vet. App. at 388; Robinette, 
8 Vet. App. at 74; Grottveit, 5 Vet. App. at 93; Espiritu, 2 
Vet. App. at 494.  Therefore, the Board concludes that this 
claim is not well grounded.

Until the appellant establishes a well-grounded claim, VA has 
no duty to assist him in developing facts pertinent to the 
claim, including providing him additional medical 
examinations at VA expense.  38 U.S.C.A. § 5107(a) (West 
1991); 

38 C.F.R. § 3.326(a) (1999) (VA examination will be 
authorized where there is a well-grounded claim for 
compensation); see Morton v. West, 12 Vet. App. 477 (1999) 
(VA cannot assist a claimant in developing a claim that is 
not well grounded).

When a claimant refers to a specific source of evidence that 
could make his claim plausible, VA has a duty to inform him 
of the necessity to submit that evidence to complete his 
application for benefits.  See Epps v. Brown, 9 Vet. 
App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 
(Fed. Cir. 1997).  VA has no outstanding duty in this case to 
inform the appellant of the necessity to submit certain 
evidence to complete his application for VA benefits.  See 
38 U.S.C.A. § 5103(a) (West 1991).  There is no indication of 
any medical records that might well ground this claim.  The 
appellant has not alleged that he is currently receiving 
treatment for the claimed right knee condition, nor has he 
alleged that any medical records exist that would contain 
medical opinions associating the claimed condition with his 
period of service.

The presentation of a well-grounded claim is a threshold 
issue.  Therefore, since the appellant has failed to present 
competent medical evidence that his claim for service 
connection for a right knee disorder is plausible, the claim 
must be denied as not well grounded.  Dean v. Brown, 8 Vet. 
App. 449 (1995); Boeck v. Brown, 6 Vet. App. 14, 17 (1993).  
There is no duty to assist further in the development of this 
claim, because such additional development would be futile.  
See Murphy, 1 Vet. App. 78.

B.  Low back disorder

It is also unclear, initially, whether the appellant even has 
a chronic low back disorder.  The evidence does not show that 
the appellant currently has an ascertainable disorder 
accounting for his complaints of back pain.  His complaints 
are symptoms only and do not constitute a diagnosed medical 
disorder.  The only 

"diagnoses" rendered during the VA examinations have been 
musculoskeletal or mechanical low back pain, which is a 
symptom only and not a recognized medical disorder.  See 
Sanchez-Benitez v. West, supra.

The only evidence of record that could arguably be considered 
diagnosis of a chronic medical disorder is the 1992 letter 
from James McIntire, D.C., which indicated that physical 
examination and x-rays demonstrated "an instability in the 
lumbar motor unit" that was creating chronic low back pain.  
Even if the Board accepts this "diagnosis" as sufficient 
evidence of a current disability, the claim is still not well 
grounded because there is no medical evidence of a nexus 
between the claimed low back disability and the appellant's 
military service.

The appellant's service medical records show treatment on one 
occasion for back pain.  He denied incurring any specific 
trauma to his back during service.  Examination showed no 
abnormalities, and x-rays were negative.  The conclusion was 
chronic back pain, which, as discussed above, is not a 
diagnosis of a chronic disorder.  Upon separation from 
service, the appellant reported a history of recurrent 
lumbosacral strain, which is not supported by the prior 
medical records.  However, physical examination at that time 
showed no abnormalities of the back. 

To establish service connection for a low back disorder, 
there must be evidence of a nexus between the current 
disability and service.  In this case, there is no such 
evidence.  In fact, the VA examiner in 1998 concluded that it 
was unlikely that the appellant's back disorder was related 
to his military service.  This was in direct contrast to the 
VA examiner in 1996 who concluded that it was possible, but 
not probable, that the appellant's back pain was directly 
related to his military service.  That opinion was based on 
the appellant's history, as opposed to the 1998 opinion that 
was rendered after review of the evidence, including the 
service medical records.  

During his VA examinations, the appellant made statements 
suggesting that he has had back pain since his military 
service.  He is certainly competent to report experiencing 
such symptoms.  Even accepting his statements as 
representative of 

continuity of symptomatology, there is no competent medical 
opinion of record showing that he currently has a chronic low 
back disorder that is related to any prior symptoms he may 
have experienced.  Cf. Savage, 10 Vet. App. at 497.  Nor is 
nexus shown by post-service continuity of symptoms.  The 
post-service complaints of back pain are too remote from each 
other to support a finding that they represent continuity of 
symptomatology.  As indicated above, the appellant has not 
demonstrated that he has the medical expertise to render such 
an opinion.  See Edenfield, 8 Vet. App. at 388; Robinette, 
8 Vet. App. at 74; Grottveit, 5 Vet. App. at 93; Espiritu, 2 
Vet. App. at 494.  Therefore, the Board concludes that this 
claim is not well grounded.

Since the appellant's claim is not well grounded, VA has no 
duty to assist him, including by providing him a VA 
examination.  VA also has no outstanding duty to inform the 
appellant of the necessity to submit certain evidence to 
complete his application for VA benefits because nothing in 
the record suggests the existence of evidence that might 
contain medical opinions associating the claimed low back 
disorder with his period of service.  There is no duty to 
assist further in the development of this claim, because such 
additional development would be futile.  See Murphy, supra.

ORDER

Entitlement to service connection for right knee, left knee, 
and low back disorders is denied.



		
	M. S. SIEGEL
	Acting Member, Board of Veterans' Appeals