Citation Nr: 0001357 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 95-24 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right knee disability on a direct basis. 2. Entitlement to service connection for a left knee disability on a direct basis. 3. Entitlement to service connection for a right wrist disability on a direct basis. 4. Entitlement to service connection for a left wrist disability on a direct basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat, Associate Counsel INTRODUCTION The veteran had active military service from May 1990 to March 1992. He served in the Southwest Asia theater of operations from December 1990 to June 1991. The issues on appeal arise come before the Board of Veterans' Appeals (Board) from an April 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. By this rating decision, the RO denied service connection for a right knee disability, a left knee disability, a right wrist disability, and a left wrist disability, all on a direct basis only. The veteran testified before a local hearing officer in September 1995. In May 1997, the Board remanded the veteran's claims, primarily so that the RO could consider and develop them as claims concerning a chronic disability resulting from an undiagnosed illness, based on the veteran's service during the Gulf War. By a July 1999 supplemental statement of the case, the RO continued to deny service connection for a right knee disability, a left knee disability, a right wrist disability, and a left wrist disability, on a direct basis and as chronic disabilities resulting from an undiagnosed illness. The veteran was advised that a response to the supplemental statement of the case was optional. The veteran's claims concerning service connection for a right knee disability, a left knee disability, a right wrist disability, and a left wrist disability, all on a direct basis, are discussed in the decision section, while the claims concerning service connection for joint pain of the knees as a chronic disability resulting from an undiagnosed illness and for joint pain of the wrists as a chronic disability resulting from an undiagnosed illness, are discussed in the Remand section below. FINDINGS OF FACT 1. The veteran's allegation that his right knee disability is related to service is not supported by any medical evidence that would render the claim plausible. 2. The veteran's allegation that his left knee disability is related to service is not supported by any medical evidence that would render the claim plausible. 3. The veteran's allegation that he currently has a right wrist disability is not supported by any medical evidence that would render the claim plausible. 4. The veteran's allegation that he currently has a left wrist disability is not supported by any medical evidence that would render the claim plausible. CONCLUSIONS OF LAW 1. The veteran has failed to state a well-grounded claim for service connection for a right knee disability on a direct basis. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has failed to state a well-grounded claim for service connection for a left knee disability on a direct basis. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran has failed to state a well-grounded claim for service connection for a right wrist disability on a direct basis. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran has failed to state a well-grounded claim for service connection for a left wrist disability on a direct basis. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records reflect, in pertinent part, that in February 1990, the veteran was examined for purposes of enlistment. Prior to the examination, the veteran denied any history of swollen or painful joints, leg cramps, broken bones, tumor, growth, cyst or cancer, arthritis, rheumatism, or bursitis, bone, joint or other deformity, lameness, or "trick" or locked knee. Upon examination, the veteran's upper extremities, lower extremities, and "other musculoskeletal" were found to be normal. In May 1990, the veteran was seen in an acute medical care setting, complaining of a one day history of pain in his knee and ankle. It was not noted whether the veteran's right or left knee was involved. The veteran denied having any trauma in the prior 72 hours, nor any pain for the prior three weeks. There was no redness or swelling noted. The veteran was given Ecotrin and told to run at his own pace for 48 hours. He was also told to return if the problem persisted. In September 1991, the veteran sought treatment at a clinic in Amberg, Germany. He complained of, in part, pain in his upper left shoulder for over one month. There were no complaints of knee or wrist symptoms. On a statement of option form dated in March 1992, the veteran indicated that he did not desire a separation examination. In October 1993, the veteran filed a claim concerning service connection for joint pain of the knees and wrists. In January 1994, the veteran underwent a general medical examination for VA purposes. He reported that while serving in Desert Storm in December 1990 and January 1991, water flowed along both legs due to a leak in a small tank he was driving. Two or three months later from April to May of 1991, he experienced aching of both knee joints. He was seen in a clinic in Germany. His present complaints were of pain of both knee joints, worse on the right. Examination revealed no scars or functional effects. The diagnosis was arthralgias of both knee joints, etiology unknown. The veteran also underwent a joints examination for VA purposes in January 1994. Examination of the knees revealed no swelling, deformity, lateral instability, subluxation, nonunion, loose motion, or malunion clinically. Range of motion bilaterally was flexion to 140 degrees and extension to 0 degrees. An X-ray of the left knee was normal. X-ray of the right knee revealed deformity of the distal femoral cortex anteriorly, with associated radiolucencies. These findings were compatible with an old healed fracture or desmoid. There was no acute fracture or dislocation. There was slightly increased soft tissue density in the suprapatellar region, suspicious for an effusion. The diagnosis was arthralgias of both knee joints, etiology unknown. The examiner also noted that the veteran complained of problems with his wrist joints during the examination. Objectively, there was no abnormality, swelling, or deformity found. Ranges of motion of both wrists were within normal limits (i.e., dorsiflexion to 70 degrees and palmar flexion to 80 degrees). In a telephone conversation with the RO in February 1995, the veteran advised that he had not served in the Reserves. By an April 1995 rating decision, the RO denied service connection for a right knee condition, a left knee condition, a right wrist condition, and a left wrist condition. In an April 1995 notice of disagreement, the veteran's representative appeared to argue that missing service medical records were the reason why the veteran's claims were not being granted. The veteran testified at the RO before a local hearing officer in September 1995. He confirmed that he had served in Desert Storm from December 1990 to June 1991. He claimed that he had made a claim for service connection in September 1991, while he was serving in Hamburg, Germany. He was feeling pain while going up and down steps. While in Desert Storm, the veteran's MOS was 19-Delta, cavalry scout. He was a driver of reconnaissance vehicles. The veteran stated that whenever it rained, water would seep into the hatch of the vehicle he was driving, and when the vehicle was accelerated, cold water would wash up onto his knees. The veteran speculated that this was the cause of his bilateral knee condition. The veteran testified that he noticed a bump on his left knee in September 1991, and that the bump had remained there ever since. He went to a clinic more than once for this, and he indicated that service medical records were not present in the claims file which would verify this. The veteran was told that his knee pain was a muscle problem that would work itself out and go away, but it never did. The veteran denied that there was a lump above his right knee. Other than his VA examination, the veteran had not been examined or treated for his knee symptoms since discharge. The veteran denied ever having broken any bones. Concerning his wrists, the veteran testified about a sharp pain he would experience when picking up objects in certain ways. The veteran first noticed this upon his departure from Desert Storm. In May 1997, the Board remanded the veteran's claims for additional development. In June 1997, in response to a request made by the RO, the National Personnel Records Center (NPRC) advised that it did not have any service medical records pertaining to the veteran. In December 1997, NPRC forwarded additional service records pertaining to the veteran. These include, in pertinent part, an additional copy of the February 1990 enlistment examination report. These records do not reflect any complaints of or treatment for any knee or wrist symptoms. In February 1998, the veteran underwent another joint examination for VA purposes. He complained of worsening knee pain since 1992. It started with pain in his left knee, with what he described as a lump slightly superior to the patella, and then he developed right knee pain. He also had some pain in the wrist which worsened with activity. The veteran continued to work as a construction worker. The veteran specifically denied any injuries to the knees, including fractures, and also denied having had any surgeries. Examination of the knees revealed flexion to 140 degrees and extension to 0 degrees bilaterally. There was bilateral crepitus and the possibility of minimal effusions. There was no ligament laxity and the knee joint revealed good stability. The examiner did feel a bony prominence superior to the patella on the left knee, which the veteran had described as a lump. It was approximately 1 cm in diameter. Examination of the wrist revealed normal range of motion and no swelling. The examiner diagnosed the veteran as having arthralgias and possible osteoarthritis, although additional X-rays were recommended. An X-ray report of the knees revealed a cortical lesion anteriorly in the distal-most shaft of the left femur. The remainder was within normal limits, with no evidence of fracture, dislocation, arthritis, effusion, or loose body. However, further in the X-ray report, it was noted that the cortical defect was on the right side. In an April 1998 addendum, the VA examiner noted that the X- ray report did not show any evidence of osteoarthritis, and further concluded that the cortical defect on the right did not seem to be the cause of the veteran's pain. In a May 1999 supplemental statement of the case, the RO continued to deny service connection for a right knee disability, a left knee disability, a right wrist disability, and a left wrist disability. In September 1999, the veteran's representative asserted, in part, that the veteran was invoking the combat veteran's advantage under 1154 to offset the lost service medical records. II. Analysis Under the criteria applicable, service connection will be granted for disability resulting from personal injury suffered or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). In addition, certain chronic diseases, including arthritis, when manifest to a degree of 10 percent or more within one year after the veteran's military service ended, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 1991 & Supp. 1999); 38 C.F.R. § 3.307(d)(1999). A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The Secretary shall assist such a claimant in developing the facts pertaining to the claim. 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well-grounded claim for service connection generally requires medical evidence of a current disability (See Rabideau v. Derwinski, 2 Vet. App. 141 (1992)); 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); See also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97-7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). Alternatively, under 38 C.F.R. § 3.303(b) (1999), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307 (1999)) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the veteran's present condition. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1998). 1. Claims concerning right and left knees Under the foregoing circumstances, it is the Board's conclusion that the veteran has failed to submit evidence of well-grounded claims concerning service connection for a right knee disability on a direct basis and for a left knee disability on a direct basis. There is no competent evidence linking any current diagnosed condition of the knees to service or to a service-connected disability. Caluza, supra. In fact, the VA examiner in January 1994 specifically concluded that the veteran's arthralgia, first noted over two years after discharge, and had no known etiology. The Board notes that the veteran has asserted that cold water washing over his knees during the Gulf War apparently caused his bilateral knee condition. However, the veteran, as a lay person, is not competent to make determinations requiring medical expertise which is the situation in this case. See Espiritu v. Derwinski, 2 Vet. App. 494, 494 (1992). Finally, in deciding the veteran's claim concerning the knees, the undersigned notes that where a claim for service connection is brought by a veteran who engaged in combat, the Board must apply 38 U.S.C.A. § 1154, which provides that satisfactory lay or other evidence that a disease or an injury was incurred in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even if there are no official records indicating service incurrence. 38 U.S.C.A. § 1154 (West 1991); Swanson v. Brown, 4 Vet. App. 148, 151-52 (1993); Smith v. Derwinski, 2 Vet. App. 137, 140 (1992); 38 C.F.R. § 3.304(d) (1999). It is unnecessary for purposes of this decision to determine if the veteran engaged in combat. The provisions of 38 U.S.C.A. § 1154 are limited to the question of whether a particular disease or injury occurred in service, that is, what happened then, and not with the question of nexus between any current disability and service. In other words, these provisions only relax the evidentiary requirements for determining what happened in service. The provisions do not establish service connection for a combat veteran. The veteran must still meet the Caluza test by presenting competent evidence of a current disability and medical evidence showing a nexus between a current disability and service. In the instant case, the veteran has not met the burden of presenting a nexus between any claimed disability and service. 2. Claims concerning right and left wrists The veteran's claims concerning service connection for a right wrist condition on a direct basis and for a left wrist condition on a direct basis are not well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). No medical records have been submitted since service separation showing the presence of any bilateral wrist disability. In short, the medical evidence does not show that the veteran currently has any bilateral wrist disability. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet.App. 359 (1995). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") has held that lay persons cannot provide testimony where an expert opinion is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, as discussed above, even if the provisions relating to combat veterans as discussed above were applicable to the veteran, these regulations do not mitigate the need to establish the presence of a chronic disability. 38 U.S.C.A. § 1154 (West 1991). 3. 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 held that, under 38 U.S.C. § 5107(a), 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 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). The Board is mindful of the assertions made by the veteran and his representative that service medical records are incomplete. However, the Board notes that the claims folder does contain what appears to be a complete set of medical records, dating from the veteran's entrance examination in February 1990 to March 1992, when the veteran signed a form reflecting his desire not to have a separation examination. The veteran has reported that he sought treatment for knee pain at a German clinic in September 1991, and has suggested that service medical records are missing which would reflect this treatment visit. While the existing service medical records do not reflect that particular treatment, they do include a document (summarized above) reflecting an outpatient visit to a clinic in Amberg, Germany, in September 1991, albeit for shoulder pain. None of the additional service records associated with the claims file in December 1997 reflect any complaints of or treatment for knee or wrist symptoms. It should also be noted that even if a service medical record could be located establishing that the alleged knee treatment had transpired in September 1991 (or any other time), there is still no medical evidence of a nexus between any current bilateral knee condition and service, nor is there any evidence postservice of the presence of any current bilateral wrist condition. Thus, a further search for service medical records at this time would not serve any useful purpose. If claims are not well grounded, the Board does not have jurisdiction to adjudicate them. Boeck v. Brown, 6 Vet. App. 14 (1993). Accordingly, as claims that are not well grounded do not present a question of fact or law over which the Board has jurisdiction, the claims concerning entitlement to service connection for a right knee disability, a left knee disability, a right wrist disability and a left wrist disability, all on a direct basis, must be denied. ORDER Service connection for a right wrist disability on a direct basis is denied. Service connection for a left wrist disability on a direct basis is denied. Service connection for a right knee disability on a direct basis is denied. Service connection for a left knee disability on a direct basis is denied. REMAND While the Board has determined that the veteran's claims concerning service connection for a right knee disability, a left knee disability, a right wrist disability and a left wrist disability are all denied on a direct basis, there remains a question as to the veteran's claims concerning an undiagnosed illness. Those claims are the subject of this remand, and a procedural summary is necessary to clarify the situation. On his claims form filed in September 1994, the veteran indicated that he had joint pains in his knees and wrists. In a separate sentence, he also requested a "blood screening for Desert Storm." The March 1995 rating decision, which denied service connection for bilateral knee conditions and bilateral wrists conditions, was based on direct service connection only. There was no mention of 38 C.F.R. § 3.317, the federal regulation pertaining to claims concerning chronic disabilities resulting from an undiagnosed illness, nor was there any mention of 38 C.F.R. § 3.317 in the July 1995 statement of the case. During the September 1995 local hearing, the veteran asserted that while he had made a request for a "blood screening," VA had not contacted him in this regard. In its May 1997 remand, the Board requested that the RO develop the veteran's claims for bilateral knee and wrist pain in light of 38 C.F.R. § 3.317, and forward the claims file to an Area Processing Office (APO) for adjudication. If an APO no longer existed to process undiagnosed illness claims, the RO was instructed to adjudicate the claims itself. The Board notes that in May 1997, the processing of undiagnosed illness claims was decentralized and APOs were no longer used to adjudicate these claims. After requesting the veteran's assistance in providing updated medical records, the RO, in its July 1999 supplemental statement of the case, denied service connection for bilateral knee and bilateral wrist disabilities, both on a direct basis and as chronic disabilities resulting from an undiagnosed illness. The July 1999 supplemental statement of the case did not provide the specific text of 38 C.F.R. § 3.317, and on the cover letter, the RO advised the veteran that a response was optional. The veteran did not file a response, although his representative did file a 646 in September 1999 generally referencing the claims for service connection and mentioning the veteran's status as a Gulf War veteran. It is somewhat unclear whether the veteran's requests for a "blood test" are actually claims concerning joint pain of the knees and wrists as chronic disabilities resulting from an undiagnosed illness. However, to the extent that the veteran has raised such claims, a new supplemental statement of the case should be prepared, with the specific language of 38 C.F.R. § 3.317 included, and the veteran should be provided with the opportunity to perfect his appeal. Thereafter, the claims should be returned to the Board for further adjudication. Should the RO determine that the claims concerning joint pain of the knees and/or wrists as chronic disabilities resulting from an undiagnosed illness are well grounded, all appropriate development, including that described in M21-1, Part III, Change 74 (April 30, 1999) should be conducted by the RO. In view of the foregoing, the veteran's claims concerning joint pain of the knees and ankles as chronic disabilities resulting from an undiagnosed illness are REMANDED to the RO for the following development: 1. In a new supplemental statement of the case, the RO should again consider the following issues: (1) entitlement to service connection for joint pain of the knees as a chronic disability resulting an undiagnosed illness; and (2) entitlement to service connection for joint pain of the wrists as a chronic disability resulting from an undiagnosed illness. 2. If the RO determines that either or both claims are well grounded, it should complete development pertinent to Gulf War claims as detailed in M21-1, Part III, Change 74 (April 30, 1999), and all other relevant directives. 3. If the RO denies the claims, the veteran should be provided with the specific text of 38 C.F.R. § 3.317 in the language of the supplemental statement of the case, and the veteran should be provided with a reasonable opportunity to perfect his appeal. In the event a timely substantive appeal is filed, the case should be returned to the Board for further appellate consideration. No action is required of the veteran until he is informed. The purpose of this REMAND is to afford the veteran due process. No inference should be drawn regarding the final disposition of the claims concerning service connection for joint pain of the knees as a chronic disability resulting from an undiagnosed illness, and concerning service connection for joint pain of the writs as a chronic disability resulting from an undiagnosed illness, as a result of this action. 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 or by the Court 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. Iris S. Sherman Member, Board of Veterans' Appeals