Citation Nr: 0000146 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 94-03 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for residuals of a left knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from June 1977 to July 1983. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana which denied service connection for asthma and for a left knee injury. The case was previously before the Board in June 1997, at which time entitlement to service connection for asthma was denied and the case was otherwise Remanded for additional development of the claim of entitlement to service connection for residuals left knee injury. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT The claims file does not include medical evidence of a nexus between current left knee pathology and the veteran's military service. CONCLUSION OF LAW The claim of entitlement to service connection for residuals of left knee injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. Active military, naval and air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6(a) (1999); see also Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty, active duty for training or for injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 1110, 1131; 38 C.F.R. §§ 3.6 (a)(d), 3.303 (1999). The threshold question which must be answered as to this issue is whether the veteran has presented a well grounded claim for service connection. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for service connection generally requires (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) 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 (Fed. Cir. 1997). Alternatively, the U.S. Court of Appeals for Veterans Claims (Court) has indicated that 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). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "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. If a claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, the VA does not have a duty to assist the veteran further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. The veteran was on active duty for training with the Indiana National Guard on July 6, 1985 when she slipped and injured her left knee. A determination was made that the injury was incurred in the line of duty. Although the record suggests that the condition was acute and resolved, the veteran contends her current left knee problem is the result of that injury. In connection with treatment for that injury, the Board notes that the veteran apparently provided history on July 11, 1985 to the effect that she had previously experienced a torn ligament and a chip fracture to the left knee in November 1984. In June 1993, the veteran was afforded a joints examination. There was no swelling, deformity or instability. There was no subluxation, but there was a trace of crepitus on the lateral side. X-rays were within normal limits. Diagnosis was normal knee at that time. The veteran underwent arthroscopic surgery of the left knee in September 1994. The Board additionally notes that at that time the veteran was diagnosed with chondromalacia and plica of the left knee. The veteran was afforded X-rays in January 1997 at which she reported past trauma to the left knee as well as arthroscopic surgery in 1994. The impression was mild, medial tibial plateau and femoral condyle depression and minimal narrowed joint. Otherwise, the examination was unremarkable. It was left for the clinician to establish any correlation. Clinical records from the summer of 1997 report that X-rays showed mild degenerative joint disease of the left knee and ankle. A VA joints examination in December 1998 reported the veteran as 42 years of age, with a weight of 225 pounds, and with a chief complaint of left knee pain. She described her fall in service in 1985 as well as her sequelae. She reported persistent pain and catching since the incident and eventually having left knee arthroscopy in 1994. The examiner observed that in December 1998 there was no evidence of a meniscal or ligament injury, and there was no evidence of patellofemoral degenerative disease at that time. The veteran also reported "that she did very well since 1994" until some short time before the examination. Medial lateral collateral ligaments were normal. There was no laxity in the anterior posterior cruciate ligament. Overall impression was degenerative joint disease of the left knee, primarily involving the medial compartment. Patellar mal-tracking syndrome with chondromalacia patellae of the left knee was also noted. An impression of iliotibial band tendonitis of the left knee was also rendered. The examiner also commented that he did "not feel that the left knee condition was etiologically related to her injury sustained in 1985. The examiner noted that the veteran had obvious progressive degenerative joint disease, which again was not felt to have been caused by the injury. The examiner also observed that the veteran had reported being pain free since 1994 until recently before the December 1998 examination. As indicated above, the law provides that the veteran must show a disability occurred during service, that she has a current disability, and that there is a medical nexus or link between the injury or symptoms in service and the current disability. The Board finds that the veteran has failed to provide medical evidence of a nexus between the current left knee disorder and any incident occurring during her active duty for training. As no competent medical evidence has been introduced into the record showing a link between the current disorder and the veteran's training, the veteran's claim must be denied as not well-grounded. The Board also notes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because she, as a lay person, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). While the veteran's statements represent evidence of symptomatology after service, there still must be competent medical evidence linking the current disability to the injury during her training and symptomatology she says she had after her training ended. Her statements are not competent evidence that can relate the current disorder to an event that happened in service or during her training. Savage v. Gober, 10 Vet. App. 488 (1997). Although lay evidence is acceptable to prove the occurrence of an injury during service, lay testimony is not competent to prove a matter requiring medical expertise, such as a diagnosis or an opinion as to medical causation. See Espiritu at 494-495. The veteran's representative has taken issue with the veteran's purported own derogatory statement as to being pain free between 1994 and some time before the December 1998 examination. The representative, in effect, challenged the adequacy of the December 1998 examination. However, the law is well established that VA has no duty to assist a claimant under 38 U.S.C.A. § 5107(a) unless and until she has presented a well-grounded claim. Epps v. Gober, 126 F. 3d 1464 (Fed. Cir. 1997). Accordingly, any shortcoming with respect to the December 1998 examination does not provide a basis for the claimed remedy (another examination) until a well grounded claim has been presented. The Board's June 1997 remand was largely required to satisfy a pre-duty-to- assist requirement imposed pursuant to Bell v. Derwinski, 2 Vet. App. 611 (1992) (per curiam) (records in constructive possession of VA). Nevertheless, in light of the Board's conclusion herein that this claim of entitlement to service connection is not well grounded, no further duty to assist the veteran exists at this time and the claim is not elevated to well grounded status merely by virtue of the previous remand. Accordingly, the veteran's claim for service connection for residuals left knee injury must be denied as not well grounded. ORDER Entitlement to service connection for residuals left knee injury is denied. BRUCE KANNEE Member, Board of Veterans' Appeals