Citation Nr: 0002343 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 94-16 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from June 1981 to October 1986. The veteran filed a claim in August 1991 for service connection for broken ankles and bad knees. This appeal arises from the April 1992 rating decision from the Los Angeles, California Regional Office (RO) that denied the veteran's claim for service connection for bilateral knee pain, left ankle fracture, and right ankle fracture. A Notice of Disagreement was filed in June 1992 and a Statement of the Case was issued in September 1992. A substantive appeal was filed in September 1992. In May 1993, the veteran requested a hearing at the RO before a Member of the Board. On March 21, 1994, a hearing was held at the RO before Charles D. Romo, a member of the Board. This case was remanded in June 1994 for further development. The case was thereafter returned to the Board. Pursuant to a May 1996 letter from the Board informing the veteran that the Board Member who had conducted the previous Board hearing was no longer with the Board, in May 1996 the veteran indicated that he wished to have another hearing at the RO before a Member of the Board. This case was remanded in July 1996 to afford the veteran the abovementioned Board hearing. On July 17, 1996, a hearing was held at the RO before Mary Sabulsky, who is a member of the Board rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). This case was remanded in October 1996 for further development. In June 1999, the veteran requested a hearing at the RO before a Member of the Board. On July 22, 1999, a hearing was held at the RO before Iris S. Sherman, who is a member of the Board rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). Additionally, while an appeal had been perfected as to an August 1992 rating decision that denied service connection for a nasal injury and a right hand finger injury, the veteran withdrew his claim for service connection for these disabilities in July 1996. The Board notes that the veteran had indicated that he was seeking to reopen his claim for service connection for disabilities to include hearing loss, a broken nose, and a fracture of the finger. In an October 1999 rating action, the RO determined that new and material evidence to reopen a claim for hearing loss and a fracture of the finger was denied and service connection for hearing loss was denied. In the reasons and bases portion of the decision, there was analysis regarding reopening a claim for service connection for a nose disability; however, the issue or decision portion of the decision did not address a nose disability. While this may be a typographical error, the issue of a reopened claim for service connection for a broken nose should be clarified. It is, therefore, referred to the RO for the appropriate action. At the hearing before the Board in July 1999, the veteran raised a claim for service connection for an ankle disability on a secondary basis. This issue, which is not inextricably intertwined with any issue on appeal, is also referred to the RO for appropriate action. FINDINGS OF FACT 1. There is no competent medical evidence linking the veteran's current right knee disability to his military service; the claim is not plausible. 2. There is no competent medical evidence linking the veteran's current left knee disability to his military service; the claim is not plausible. 3. There is no competent medical evidence linking the veteran's current right ankle disability to his military service; the claim is not plausible. 4. There is no competent medical evidence linking the veteran's current left ankle disability to his military service; the claim is not plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a right knee disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a left knee disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for a right ankle disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim of entitlement to service connection for a left ankle disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background On a service enlistment examination in May 1981, a history of broken bones and trick or locked knee was reported. The veteran indicated that he had fractured the left ankle and was treated with an ace bandage. He had pain in the knees when applying pressure, such as when jumping. On an orthopedic consultation later in May 1981, it was noted that the veteran had symptomatic knees on certain stress. The veteran was able to play basketball and run but on certain motion he would get pain in the knees. He had had no treatment. On examination, there were no gross abnormalities. The x-rays were negative. Additionally, it was noted that the veteran had normal knees, not disabling. On a service induction examination in June 1981, no history of broken bones or trick or locked knee was reported. In May 1982, the veteran reported that he had hurt his left knee when he fell down while playing basketball. On examination, the knee was within normal limits. The assessment was soft tissue damage. In June 1984, the veteran was seen with complaints regarding the knees. The assessment was knee stress. The veteran was referred for a physical therapy consult. A June 1984 physical therapy consult shows that the veteran complained of right knee pain for three years, secondary to running. The initial injury happened when he was playing basketball. He had also sustained a right ankle sprain in September 1983. The range of motion was within normal limits, with pain with full flexion. There was no effusion or laxity. The x-rays were negative. The assessment was patellofemoral syndrome. In July 1984, the veteran was on profile for improving right knee strain. In August 1984, the veteran complained of ankle tenderness after playing basketball. The assessment was ankle sprain. The veteran was on profile for right ankle sprain. On a service separation examination in September 1986, a history of broken bones, trick or locked knee, and foot trouble was reported. It was noted that the veteran had right ankle fracture with no sequela. He had joint problems of the knees with no sequela. It was additionally noted that the veteran stated that he fractured the ankle and right knee while in service; however, there was no medical data to support this. On examination, the veteran's lower extremities were clinically evaluated as normal. In August 1991, the veteran filed a claim for service connection for broken ankles and bad knees. VA medical records from June 1991 to August 1991 show that the veteran was seen in June 1991 for polysubstance dependence treatment. It was noted that the veteran was being treated for a fractured left ankle. He had fallen six months ago. It had healed but he had pain since then. In August 1991, the veteran was seen for evaluation of status post ankle fracture with persistent pain. The veteran reported a history of multiple left and right ankle fractures secondary to athletics and jumping out of planes. The last left ankle fracture was one year ago. He had persistent pain of the left ankle. The assessment was repeated ligamentous injury. Later in August 1991, the veteran had continued treatment for left ankle pain. Received in October 1991 was a record from the Los Angeles County University of Southern California Medical Center from February 1991 that shows that the veteran was seen with trauma to the left ankle. Received in November 1991 were records from Riverside General Hospital from April 1991 that show that the veteran was seen with left ankle fracture two months ago, from which he still had pain. The diagnoses included left ankle strain. A record from General District Health Insurance in Germany, from October 1991 indicated that the veteran was treated in September 1988 for a meniscus injury of the right knee; in February 1989 for meniscus-opathy of the left knee; in July 1989 for a contusion of the left knee; and in October 1989 for meniscus dislocation of the right knee joint. By rating action of April 1992, service connection for bilateral knee pain was denied, service connection for a left ankle fracture was denied, and service connection for right ankle fracture was denied. The current appeal to the Board arises from these denials. VA outpatient records from February 1991 to November 1992 show that in February 1991, the veteran was seen with complaints of falling into a hole and twisting his left ankle. No prior problems were noted. The diagnoses included left ankle sprain. In May 1991, the veteran was seen with left ankle pain; he had a left ankle injury six months ago. Also in May 1991, the veteran was seen with complaints of swelling and pain of the right ankle. The x-rays from later in May 1991 showed no fracture or dislocations. There was a small bony spur of the anterior left tibia distally, secondary to old trauma. Later in May 1991, the veteran was seen with posttraumatic left ankle pain. In August 1992, the veteran was seen with complaints of right knee pain; he was last seen in May 1992 status post a kick to the right knee in early May. He had intermittent pain since then. The impression was bilateral knee pain of unknown etiology; there was a possible history of left knee ligamentous injury per the veteran. In September 1992 and October 1992, the veteran had continued treatment for bilateral knee disability. In November 1992, the veteran's past medical history included status post ankle and knee fractures. The examination of the lower extremities was negative. Later in November 1992, the veteran was seen with complaints to include chronic bilateral knee and ankle pain. He indicated that he was hurt in the service. At a March 1994 Board hearing, the veteran testified that he fractured both of his ankles in service on several occasions. He injured his knees in service many times. He was not qualified to be an airborne soldier due to the problems with his knees and ankles. After service, he fractured his ankles and injured his knees. Associated with the file was an August 1991 VA hospital record that shows that the veteran's past medical history was remarkable for sprain of the left ankle secondary to falling in a hole. Associated with the file were records from February 1991 from the California Medical Center that show that the veteran was seen for pain of the left ankle after falling down the stairs. The diagnostic impressions included acute soft tissue injury of the left foot. Associated with the file were VA outpatient records from May 1991 to April 1994 that show that in May 1991 the veteran was seen with a painful left ankle since an old injury in February 1991. A VA record from May 1992 shows that the veteran was issued a right knee brace. A VA outpatient record from August 1992 shows that the veteran was referred to orthopedics status post a right knee injury. The injury occurred when he was involved in a fight in May 1992 and he still had pain. A VA outpatient record from April 1994 shows that the veteran was seen for a twisted right ankle. The ankle was stuck in a rowing machine. At a Board hearing in July 1996, the veteran testified that he was treated for bilateral knee problems in service and had treatment after service, beginning in 1988. The veteran had a current knee disability. He was also being treated for an ankle disability. VA outpatient records from October 1995 to January 1996 show that in October 1995, the veteran was seen with complaints of bilateral knee pain. The assessment included bilateral knee degenerative meniscal tears by history and examination. In November 1995, the veteran was seen with complaints of bilateral knee pain. The assessment was bilateral antero- medial knee pain. In January 1996, the veteran was treated for bilateral knee pain, reportedly for fifteen years. The assessment included bilateral patellofemoral pain. On a VA examination in September 1997, the veteran stated that he injured his knees during service. Currently both knees locked up on him with pain and swelling. He indicated that both of his ankles were becoming affected due to his knee problems. The diagnoses included that there was insufficient clinical information to diagnose any acute or chronic disorder of either knee, or any chronic sequelae thereof. There were moderate range of motion deficits attributable solely to pain. There was a normal ankle examination with full range of motion. It was noted that due to no clinically diagnosable disability or disorder involving either knee, no causal relationship was established between the veteran's knee disability and his bilateral ankle disability. It was additionally noted that "service connection was established for the veteran's knee condition, and it appeared the veteran was developing ankle complaints which [could not] be substantiated clinically at this time." A VA outpatient record from May 1997 shows that the veteran was seen with complaints of bilateral knee pain that he had for years. A VA outpatient record from June 1998 shows that the veteran was receiving treatment for post traumatic pain of the knees. Additionally in June 1998, the veteran complained of bilateral ankle pain. Associated with the file was an October 1998 report from Jurgen Wollin, Dr. med., indicating that the veteran had been diagnosed with meniscus-opathy of the left knee and contusion of the left knee in February 1989. A VA outpatient record from October 1998 shows that the veteran complained of chronic ankle pain and chronic knee pain. The assessments included chronic pain syndrome of the knees and ankles. The veteran had continued treatment from November 1998 to June 1999 for chronic pain syndrome. In June 1999, the impressions included patellofemoral syndrome and diffuse ankle pain with no distinct pathology. At the July 1999 Board hearing, the veteran testified that he injured his knees in service on more than one occasion and was treated. He was treated after service in Germany for knee problems and was currently being treated for knee problems. He fractured his ankles in service and had treatment after service. II. Analysis 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 preexisting such service, was aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Where a veteran served 90 days or more during a period of war or 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 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). A claimant seeking benefits under a law administered by the Secretary of the Department of Veteran Affairs 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 has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, to sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). 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 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, 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). In particular, 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) (table); 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). The second and third Caluza elements can also be satisfied by evidence that a condition was "noted" during service or during an applicable presumption period; evidence showing post-service continuity of symptomatology; and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the case of a disease only, service connection also may be established by evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statue or regulation, during the applicable presumption period and present disability from it. Savage, 10 Vet. App. at 495. The veteran is claiming that he currently has bilateral knee and ankle disabilities that were incurred during service. The veteran has submitted no competent medical evidence to establish a nexus between any current bilateral knee or bilateral ankle disability and his service. He has also submitted no medical evidence that any current knee or ankle disability is related to continuity of symptomatology post service. Savage. The only evidence that would support the veteran's claim is found in his statements. However, lay evidence is inadequate to establish a medical nexus. Epps v. Gober, 126 F.3d 1464 (1997). Since all three criteria to establish evidence of a well-grounded claim have not been met, it follows that the veteran's claim must be denied based on his failure to submit evidence of a well-grounded claim. Absent a well-grounded claim, the Board has no duty to assist or decide the case on its merits. It should be noted that while the veteran has contended that there are service medical records that are not associated with the file, a follow up search from the National Personnel Record Center in November 1992 revealed no additional records and a note from Ft. Bragg from August 1994 indicated that there were no records. In addition, while the representative has argued that the VA has a duty to assist claimants whose claims are not well grounded, this proposition has been rejected by the United States Court of Appeals for Veterans Claims. On July 14, 1999, the Court affirmed a September 6, 1996 Board decision which denied claims for service connection for several disabilities as not well grounded. Morton v. West, 12 Vet. App. 477 (1999). In that case, the Court addressed and rejected the appellant's argument on appeal that, by virtue of various regulations, VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions, and Compensation & Pension Service (C&P) policy concerning the development of claims, VA had taken upon itself a duty to assist in fully developing the facts pertinent to a claim even in the absence of a well- grounded claim. Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well-grounded claim, see Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998), the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. In the order, the Court addressed and rejected the request of a judge for en banc consideration. Morton v. West, 12 Vet. App. 477 (1999) (per curiam). The veteran having failed to present evidence of a plausible claim for entitlement to service connection for bilateral knee or bilateral ankle disabilities, those claims must be denied. ORDER As a well grounded claim has not been presented, entitlement to service connection for a right knee disability is denied. As a well grounded claim has not been presented, entitlement to service connection for a left knee disability is denied. As a well grounded claim has not been presented, entitlement to service connection for a right ankle disability is denied. As a well grounded claim has not been presented, entitlement to service connection for a left ankle disability is denied. Iris S. Sherman D. C. Spickler Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals M. Sabulsky Member, Board of Veterans' Appeals