BVA9504246 DOCKET NO. 92-14 677 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for plantar warts. 2. Entitlement to service connection for degenerative joint disease of both knees. 3. Entitlement to service connection for a fractured right clavicle. 4. Entitlement to service connection for residuals of a dislocated right shoulder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from January 1967 to August 1990. The appeal originated with an April 1991 rating decision in which the Regional Office (RO) denied service connection for various disorders including degenerative joint disease of both knees and residuals of a dislocated right shoulder. Another rating decision dated in June 1991 denied service connection for several disorders, including plantar warts and a fractured right clavicle. At a hearing at the RO in February 1992, the veteran limited those issues he wished to appeal to entitlement to service connection for plantar warts, degenerative joint disease of both knees, a fractured right clavicle, and residuals of a dislocated right shoulder, and two other issues which were granted by the hearing officer later in February 1992. The Board remanded the case in September 1993 in order to procure additional evidence. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that plantar warts and degenerative joint disease of both knees were incurred in service. He also asserts that service connection is warranted for a fractured right clavicle and residuals of a dislocated right shoulder. The veteran maintains that service aggravated a pre-existing injury to the right clavicle. He also contends that he dislocated his right shoulder in service. Finally, another VA examination for the purpose of evaluating his right clavicle and right shoulder has been requested. 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 file. 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 veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims for entitlement to service connection for plantar warts on the left foot, a fractured right clavicle, and residuals of a dislocated right shoulder are well- grounded. It is also the decision of the Board that the record supports the claims for entitlement to service connection for plantar warts on the right foot and degenerative joint disease of both knees. FINDINGS OF FACT 1. Evidence tending to establish that the veteran currently has plantar warts on the left foot or a current disability involving the right clavicle or right shoulder has not been received. 2. All relevant information necessary for an equitable disposition of the claims for entitlement to service connection for plantar warts on the right foot and degenerative joint disease of both knees has been developed. 3. Plantar warts were manifested on the right foot during service; and the veteran currently has verrucae plantaris on the right foot. 4. Degenerative joint disease of both knees was manifested during service. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for entitlement to service connection for plantar warts on the left foot. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran has not submitted a well-grounded claim for entitlement to service connection for a fractured right clavicle. 38 U.S.C.A. § 5107 (West 1991). 3. The veteran has not submitted a well-grounded claim for entitlement to service connection for residuals of a dislocated right shoulder. 38 U.S.C.A. § 5107 (West 1991). 4. Plantar warts on the right foot were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303 (1993). 5. Degenerative joint disease of both knees was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Plantar Warts on the Left Foot, Fractured Right Clavicle and Dislocated Right Shoulder The initial burden is on the veteran to submit evidence to justify a belief by a fair and impartial individual that a claim is well-grounded. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990); 38 U.S.C.A. § 5107. A well-grounded claim is a plausible claim which is meritorious on its own and capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although it need not be conclusive, to be a well-grounded claim, the claim must be accompanied by evidence, and more than just an allegation is required. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Continuity of symptomatology is required to support the claim only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The service medical records reveal that the veteran was treated for plantar warts on both feet in August 1989. However, in order for service connection to be warranted, there must be evidence of a present disability which is attributable to a disease or injury incurred during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Evidence tending to establish that the veteran currently has plantar warts on the left foot has not been received. Moreover, the veteran testified at the RO hearing in February 1992 that he had a wart on his right foot but did not mention his left foot. Additionally, the veteran was afforded a VA examination in November 1993 for the purpose of determining whether he had plantar warts, and that examination only revealed a wart on the right foot. Thus, there is no evidence that the veteran presently has plantar warts on the left foot. With regard to the claims for entitlement to service connection for a fractured right clavicle and residuals of a dislocated right shoulder, it is contended that service aggravated a pre- existing injury. Every veteran should be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or if clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 1991). According to a report of the veteran's medical history completed in conjunction with his enlistment medical examination performed in January 1967, he fractured his left clavicle when he was twelve years old but there was no sequelae. However, when providing a medical history in October 1982, the veteran related that he fractured his right clavicle in childhood and that there were no complications or sequelae. Regardless of whether the veteran fractured the right or left clavicle, examination at enlistment included a normal clinical evaluation of the musculoskeletal system and no abnormalities involving the clavicle were noted. Thus, the veteran is presumed to have been in sound condition with regard to the right clavicle upon entering service. 38 U.S.C.A. §§ 1111, 1137. X-rays of the right shoulder in October and November 1985 revealed findings that were interpreted as "probably sequela of an old trauma (probable old [acromioclavicular] or coracoclavicular separation)." However, such speculation almost twenty years after the veteran entered service does not constitute clear and unmistakable evidence that an injury existed before service. Thus, the Board finds that an injury to the right clavicle did not pre-exist service. 38 U.S.C.A. §§ 1111, 1137. At a VA examination in November 1990, the veteran related having dislocated his right shoulder in 1976. At the February 1992 RO hearing, he testified that he hurt his right shoulder in service while playing softball. A service medical record dated in October 1985 shows that the veteran related a three month history of right shoulder pain. Also, according to that record, the veteran had dislocated his right shoulder in 1976 but denied recent trauma. The assessment was laxity of the right glenoid- humerus joint, old acromioclavicular joint injury and impingement syndrome. X-rays of the right shoulder in October 1985 revealed that the humerus and glenoid appeared normal. The veteran continued to complain of pain with forward flexion of the shoulder in November 1985, and the assessment was impingement syndrome. Another service medical record dated in November 1985 shows that X-rays revealed positive degenerative joint disease. The impression was acromioclavicular arthritis and impingement syndrome. Subsequent service medical records include no further reference to complaints, treatment or diagnoses regarding the veteran's right shoulder or clavicle bone. At a November 1990 VA examination, the veteran complained of occasional minimal pain of the right shoulder on abduction. Examination revealed the veteran complained of pain on forward flexion of the right shoulder and on palpating the acromioclavicular junction. The diagnoses included dislocation of right shoulder by history. However, no current disability involving the right shoulder or clavicle was diagnosed; nor has the veteran submitted any evidence tending to establish that he has a current disability of the right shoulder or clavicle. Rabideau, 2 Vet.App. 141, 143. Any attempt by the veteran to make such a diagnosis is not sufficient to establish a plausible claim for service connection. Where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). As the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims for entitlement to service connection for plantar warts on the left foot, a fractured right clavicle and residuals of dislocation of the right shoulder are well- grounded, the appeal of those claims is dismissed. Furthermore, as the VA has no duty to assist in the development of claims which are not well-grounded, the Board will not remand the case to afford the veteran another VA examination regarding the claims for service connection for disabilities of the right shoulder and right clavicle. 38 U.S.C.A. § 5107. The Board also notes that the September 1992 remand included a finding that the veteran's claims were well-grounded. However, the law with regard to what constitutes a well-grounded claim is continuing to develop and in light of more recent decisions by the Court of Veterans Appeals, the Board finds that dismissing the claims regarding plantar warts on the left foot, the right clavicle and right shoulder is appropriate. Furthermore, by dismissing those claims, the veteran is not burdened with a prior final adjudication on the merits. Thus, he may submit well- grounded claims for entitlement to service connection for plantar warts on the left foot, a fractured right clavicle, and residuals of a dislocated right shoulder in the future and will not be faced with a higher hurdle of providing new and material evidence to reopen those claims after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991). II. Plantar Warts on the Right Foot and Degenerative Joint Disease of Both Knees The Board finds that the claims for entitlement to service connection for plantar warts on the right foot and degenerative joint disease of both knees are "well-grounded" within the meaning of 38 U.S.C.A. § 5107, that is, the claims are plausible, meritorious on their own or capable of substantiation. Murphy, 1 Vet.App. 78. The Board further finds that the VA has met its duty to assist in developing the facts pertinent to those claims. 38 U.S.C.A. § 5107. As noted above service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Where a veteran served continuously for ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall 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, 1112, 1113, 1137; 38 C.F.R. §§ 3.307. 3.309. As already discussed, the service medical records show that the veteran was treated for plantar warts on both feet in August 1989, and he testified at the RO hearing in February 1992 that he had a wart on the right foot or heel at that time. The veteran also testified that he continually had plantar warts over the previous several years. Thus, plantar warts on the right foot were manifest during service, and the veteran has testified as to continuity of symptomatology. Moreover, the veteran currently has plantar warts on the right foot. Under the circumstances, the Board finds that plantar warts on the right foot were incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. As for degenerative joint disease of both knees, the service medical records show that the veteran sprained his left knee in April 1983 while playing volleyball. A service medical record dated in August 1983 shows that the veteran was still having left knee complaints and the diagnosis was pes tendonitis. According to a record dated in September 1986, the veteran had been experiencing left knee pain since 1973 and the assessment was possible degenerative meniscus, left. Another service medical record indicates that the veteran sustained trauma to the left knee in 1986 and includes an impression of degenerative joint disease. The veteran was seen again in May 1988 for left knee complaints and examination revealed crepitus of both knees. The assessment in October 1989 was probable degenerative joint disease, bilateral knees. While X-rays of the left knee in September 1986, October 1986 and May 1988 revealed no significant bony abnormality, according to the August 1983 service medical record, X-rays reportedly revealed mild medial degenerative joint disease. Thus, objective medical evidence contemporaneous with service, including examiners' diagnoses and X-rays on at least one occasion, supports a diagnosis of degenerative joint disease of both knees. According to a report of X-rays of both knees associated with a VA examination in November 1990, no evidence of bony abnormality was demonstrated in the left or right knee. The veteran complained of recurrent pain, and examination revealed moderate crepitus in both knees. The diagnosis was degenerative joint disease of both knees. In order to reconcile the X-ray finding and the diagnosis, the veteran was afforded another VA examination in November 1993. According to the report of X-rays associated with that examination, there had been no significant interval change since the November 1990 X-rays. However, according to the examination report, X-rays revealed minimal degenerative changes at that time, and the diagnosis was minimal degenerative changes, and decreased motion in the left knee. Thus, the veteran reported complaints involving the knees, especially the left knee, over many years in service and continued to report such complaints after service. Also, while X-ray reports in service and since service do not include an impression of degenerative joint disease of the knees, examiners during and since service have diagnosed degenerative joint disease of both knees and the most recent physician who examined the veteran apparently reviewed X-rays of the knees and determined that there were minimal degenerative changes present. The Board finds the opinion of the examining physician very probative and finds that degenerative joint disease of both knees was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. ORDER The appeal of the claims for entitlement to service connection for plantar warts on the left foot, a fractured right clavicle and residuals of a dislocated right shoulder is dismissed. Service connection for plantar warts on the right foot and degenerative joint disease of both knees is granted. U. R. POWELL 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.