Citation Nr: 0002670 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-02 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a left thigh disorder with deep vein thrombosis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from November 1983 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 1996 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 1997, the Board remanded this case to the RO for additional development, including search for the veteran's service medical records and additional treatment records. That development has been completed and the case returned to the Board for further appellate consideration. FINDINGS OF FACT 1. Residuals of a gunshot wound to the left groin with transection of the left common femoral vein was noted at service entrance. 2. There is no competent medical evidence of record that the veteran's preexisting residuals of a gunshot wound to the left groin with transection of the left common femoral vein increased in severity during service. CONCLUSION OF LAW The veteran has not presented a well-grounded claim of entitlement to service connection for a left thigh disorder with deep vein thrombosis. 38 U.S.C.A. § 5107(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service-connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). A veteran is presumed 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated. 38 U.S.C.A. § 1111 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). With respect to whether service connection is warranted based on aggravation, the law provides that there must in fact be an increase in a preexisting disability during service before a finding of aggravation can be made. 38 U.S.C.A. § 1153. Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306- 307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). Before the Board may address the merits of the veteran's claim, however, it must first be established that the claim is well grounded. In this regard, a person who submits a claim for VA benefits shall have "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); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). 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 § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to his claim, and the claim must fail. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). To establish that a claim for service connection is well grounded, a veteran must demonstrate "medical evidence of a current disability; medical evidence, 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." Savage v. Gober, 10 Vet. App. 488, 493 (1997); see Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Grottveit, 5 Vet. App. at 93. The veteran was scheduled for a VA examination in 1998, but failed to report. When entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, in an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (1999). In this veteran's case, the service entrance examination noted that the veteran had residuals of a gunshot wound to the groin prior to service with transection of the left femoral vein. Examination in October 1983 noted entrance and exit scars over the left posterior buttocks and left inguinal area. Multiple post-service outpatient treatment records reference a gunshot wound to the left thigh in about 1979 or 1980. Therefore, the evidence clearly shows that the veteran had this injury prior to entry into service, and he is not entitled to the presumption of soundness. 38 U.S.C.A. § 1111. The veteran does not deny that this condition existed prior to service; rather, he maintains that this condition was aggravated by service. Therefore, the issue is whether his preexisting gunshot wound to the groin prior to service (with transection of the left femoral vein) was aggravated by service. The service medical records reflect that in March 1986 the veteran complained of left leg pain and was treated for a contusion to the left tibia. In June 1986, he complained of swelling to the left lower leg for the previous 5 months. A bone scan revealed increased activity in the proximal 2/3 of the tibia, with possible diffuse periostitis or extensive stress fracture. Upon removal of a cast in October 1986, the veteran complained of loss of feeling or decreased sensation to the left lower leg, which was assessed as periostitis. In 1994, the veteran was treated for circulatory problems and a ruptured varicose vein involving the left leg. He reported that he had experienced numbness in the left leg since he had a gunshot wound to the groin. In November 1994, he underwent ligation and varicose vein stripping of the left leg. In April 1995, he complained of left leg pain, and in September and October 1995 was diagnosed with left leg swelling and deep venous thrombosis. At a VA examination in October 1995, the veteran reported a history of gunshot wound to the right buttock (entrance wound) and left groin (exit wound), with chronic swelling of the left leg since that time, and that he injured his left leg while playing football in service, which was diagnosed as contusion of the left leg, and that he had increased left leg swelling and pain in service with standing or long marches. He complained that his current symptoms were left leg swelling with standing over 10 minutes and he had chronic pain of the left leg which was aggravated with activity or at rest. The relevant diagnoses were: chronic severe left lower extremity myalgias secondary to gunshot wound in July 1980, status post exploration of the left groin with vascular repair, chronic swelling and pain; status post injury of the left leg 1984, diagnosed as contusion of the left lower extremity; X-ray evidence of cortical thickness of the left tibia, with chronic residual myalgias, decreased sensation of the left lower extremity, with swelling and developmental varicosities of the left leg, status post vein stripping in 1994; and acute deep venous thrombosis of the left lower extremity with thrombus in femoral vein (diagnosed by venogram in September 1995). At a personal hearing in August 1996, the veteran testified that: at age 16 he incurred a gunshot wound to the left groin; at service entrance examination, he presented records of emergency treatment for his gunshot wound; he injured his left leg playing football in service; and he felt left leg pain after this time, especially during physical training. The Board is cognizant of the fact that the veteran maintains that his preexisting residuals of a gunshot wound to the groin prior to service with transection of the left femoral vein was aggravated by his military service. Even accepting his statements as true, he cannot meet his initial burden under 38 U.S.C.A. § 5107(a) by simply presenting his own opinion as to medical causation, that is, to relate his current symptoms to service. There is no indication that he possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this case, the medical evidence of record does not show that the veteran's preexisting disability of residuals of a gunshot wound to the left groin prior to service (with transection of the left femoral vein) underwent any increase in disability during service. Although a contusion to the left tibia was noted, with possible diffuse periostitis or extensive stress fracture, this has not been related to the veteran's pre-existing disability of residuals of a gunshot wound to the left groin prior to service (with transection of the left femoral vein). It is unclear from the diagnoses, and symptoms and history included in the diagnosis portion of the examination report, exactly which symptoms and to what degree are associated with each of the diagnosed disabilities. The 1995 VA examination report also indicates that the veteran's varicosities of the left leg, which resulted in status post vein stripping in 1994, were developmental. While a subsequent examination may have clarified the relationship between the variously diagnosed disabilities and pre-service (gunshot wound), in-service (left tibia contusion), and post-service injuries (varicose vein surgery), the veteran failed to appear for such an examination. Therefore, the evidence of record is what the Board must rely upon in deciding the veteran's claim. 38 C.F.R. § 3.655. With regard to the veteran's history as reported after service in 1994, that he had experienced numbness in the left leg since he had a gunshot wound to the groin, this is a history presented by the veteran, and does not constitute medical evidence of increase in disability in service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence). Even assuming the truth of this statement, for the purpose of determining whether the veteran has presented a well-grounded claim, the statement does not constitute evidence of increase in symptomatology of left leg numbness or left leg symptomatology in service, but only that pre-existing symptomatology of numbness and pain continued in service. The October 1995 VA examination report noted that the veteran had chronic severe left lower extremity myalgias secondary to gunshot wound in July 1980, with chronic swelling and pain, but did not indicate that these increased in severity during service. Thus, there is no medical evidence showing any permanent increase in severity of the veteran's preexisting residuals of a gunshot wound to the left groin during service. The fact that the veteran's left leg was symptomatic in service is not sufficient to show that that the underlying condition, as contrasted to the symptoms, worsened. Hunt, 1 Vet. App. at 296. As such, aggravation may not be conceded. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) (1999); Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (the presumption of aggravation created by 38 C.F.R. § 3.306 applies only if there is an increase in severity during service). Because there is no competent medical evidence of record that the veteran's preexisting residuals of a gunshot wound to the left groin with transection of the left common femoral vein increased in severity during service, the Board must find that veteran has not presented a well-grounded claim of entitlement to service connection for a left thigh disorder with deep vein thrombosis. 38 U.S.C.A. § 5107(a). ORDER The veteran's claim of entitlement to service connection for a left thigh disorder with deep vein thrombosis, being not well grounded, is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals