BVA9507646 DOCKET NO. 91-48 764 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for residuals of a right ankle injury. 2. Entitlement to service connection for residuals of a right shoulder injury. 3. Entitlement to service connection for residuals of a thoracic spine injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and Nancy Pearce ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from April 1980 to March 1981 and June 1981 to April 1983. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1989 rating decision of the Wilmington, Delaware, Regional Office (RO). In November 1992, the Board remanded the case to the RO for additional evidentiary development. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that during service in late 1981, he fell and injured his right ankle, shoulder, and back, and that he has chronic residuals thereof. He asserts that on examination for service separation, he complained of these injured joints, but these were not adequately evaluated. During hearings on appeal, he testified that, shortly after service, he was treated for the right ankle in 1983 or 1984 and on occasion thereafter at a private hospital. It is argued that his testimony is credible and has not been refuted. It is requested that consideration be provided to applicable regulatory provisions, including 38 C.F.R. § 3.303, pertaining to general service connection principles. Additionally, it is requested that the benefit of the doubt doctrine be applied. 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 appellant's claims files. 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 evidence is in equipoise, and warrants a grant of service connection for residuals of a right ankle injury. However, the appellant has not met the initial burden of submitting evidence to justify a belief by a fair and impartial individual that the claims for service connection for right shoulder or thoracic spine disability are well-grounded. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal for service connection for residuals of a right ankle injury has been obtained by the RO. 2. It is probable that the appellant sustained chronic residuals of a right ankle injury in service. 3. Chronic right shoulder or thoracic spine disability was not shown to have been present in service or proximate thereto, or reasonably related to service. Chronic right shoulder or thoracic spine disability, assuming its current existence, was initially medically shown more than five and a half years after service, and there is no competent medical opinion relating it to service. CONCLUSIONS OF LAW 1. Chronic residuals of a right ankle injury were incurred in the appellant's peacetime service. 38 U.S.C.A. §§ 1131, 5107(b) (West 1991); 38 C.F.R. § 3.303 (1994). 2. The appellant has not submitted evidence of well-grounded claims for entitlement to service connection for right shoulder or thoracic spine disability. 38 U.S.C.A. §§ 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Residuals of a Right Ankle Injury In light of the Board's favorable decision, the appellant's claim for service connection for chronic residuals of a right ankle injury is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a), and the evidence of record adequate. With respect to a procedural matter, the board member who chaired the appellant's personal hearing on appeal in August 1992 has subsequently left the Board. In a March 1995 written statement, the appellant informed the Board that he declined the offered option of choosing to be scheduled for another hearing, and instead wanted the case to proceed to appellate review based on the written transcript of the hearing that was conducted. See 38 U.S.C.A. § 7102(b) (West 1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131. In pertinent part, for the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may 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 appellant's service medical records during the initial period of service reflect that in June 1980, he complained of a painful right ankle of four days duration. Clinically, there were no pertinent findings except for some discoloration, and Achilles tendonitis was assessed. The remainder of his service medical records, including a report of examination for service separation (with attendant medical questionnaire) dated in February 1981, were negative for complaints, findings, or diagnoses of a chronic ankle disability. Moreover, an examination for reenlistment (with attendant medical questionnaire) dated in May 1981 makes no reference to an ankle disability. An issue for resolution is whether or not a chronic right ankle disability was incurred during this initial period of service. The evidentiary record at that point in time did not confirm the presence of a chronic right ankle disability. The service medical records during the second period of service reflect that in November 1981, while aboard ship, the appellant complained of a sprained ankle he had incurred one and a half weeks earlier. It was indicated that pitting edema had set in after he had improperly treated the ankle. He was medically seen and instructed to elevate the leg for 4 to 5 days and take prescribed medication for the edema. However, he did not follow the instructions, the edema was still present, and he again was instructed to comply with the recommended treatment. The negative evidence includes the fact that these service medical records did not specify which ankle had been sprained. Even assuming that it was the right ankle that was injured, the remainder of his service medical records, including a report of examination for service separation dated in April 1983, were negative for complaints, findings, or diagnoses pertaining to a chronic ankle disability. However, the positive evidence includes appellant's testimony at hearings on appeal in June 1991 and August 1992, wherein he alleged that after service, he had been treated on occasion at a private hospital since late 1983 or 1984 for residuals of an inservice right ankle injury. See June 1991 hearing transcript, at T. 2, 4; and August 1992 hearing transcript, at T. 6. He has not contended inservice injury to any ankle other than the right, and the postservice clinical evidence, including VA radiographic studies of each ankle in February 1989, relates to right, not left, ankle pathology. Thus, it appears reasonable to assume that it was the right ankle that was injured during service in November 1981. Significantly, his testimony and that of his fiancee denied any intercurrent, postservice right ankle injury. See June 1991 hearing transcript, at T. 3-4. The credibility of the evidence in this case has been particularly crucial in our determination. As the United States Court of Veterans Appeals (Court) has stated in Smith v. Derwinski, 1 Vet.App. 235, 237 (1991), "determination of credibility is a function for the BVA." While the Board recognizes that statements by veterans, in general, may tend to be self-serving at times, since they have a substantial financial interest in attaining a favorable outcome to their claims for VA benefits, and therefore such statements may be of questionable reliability, the appellant's testimony presented has not been directly refuted by any credible evidence of record. Rather, his account of injury to the ankle in service is supported by the medical record. Although the RO sought clinical records from the private hospital at which the appellant alleged he received postservice medical treatment for his ankle, and none were forthcoming except for a September 1988 emergency room record (received at the June 1991 hearing on appeal), nevertheless this does not mean that postservice clinical records earlier than September 1988 never existed. In other words, the absence in the record of earlier postservice clinical records does not, in and of itself, refute his testimony regarding private medical treatment earlier in the 1980's (although neither does it support the testimonial evidence). Significantly, it does not appear from the evidentiary record that the appellant's right ankle had been radiographically examined in service or proximate thereto. See also August 1992 hearing transcript, at T.5, 11-12, setting forth appellant's statements to that effect. The earliest radiographic evidence of record regarding the right ankle was not until September 1988, approximately five and a half years after service, when he sought private emergency room treatment and an x-ray was interpreted as showing an old chip fracture of that ankle. The impression was right ankle sprain. This is a piece of positive evidence, since if the testimonial evidence of an absence of intercurrent, postservice trauma to the ankle is credible, ankle pathology shown in the late 1980's is consistent with inservice injury. According to a medical text, a sprain is defined as "a partial or complete rupture of the fibers of a ligament. Any ligament about the ankle may be torn by a force that exerts traction in the direction of the fibers. When the ligament is strong, a fragment of bone is avulsed from the point of insertion of the ligament. Samuel L. Turek, M.D., 2 Orthopaedics: Principles and Their Application, 1423 (4th ed. 1984). Again, it is pointed out that the testimonial evidence denied any intercurrent, postservice injury to that ankle. A Department of Veterans Affairs (VA) outpatient treatment report dated later in September 1988 noted a history of a right ankle injury "a few years ago", after which appellant reportedly had been told he had torn ligaments due to falling down stairs. However, the report went on to explain that the history of his falling down stairs and injuring the right ankle had occurred during service in 1983, and that despite treatment, the pain had recurred intermittently for the past five years. A provisional diagnosis of traumatic arthritis of the right ankle with effusion was rendered. X-rays of that ankle were unremarkable; and the impression in December 1988 was status post right ankle trauma, rule out ligamentous instability. Another VA outpatient treatment report dated in March, without specified year, revealed that an x-ray was interpreted as showing increased opening of the right tibio-talar joint, laterally; and the impression was right ankle lateral instability. A VA orthopedic examination in February 1989 included x-rays of the right ankle, which were interpreted by the radiologist as showing slight narrowing, of uncertain significance. However, after clinical examination of the ankle by the orthopedist, the appellant was diagnosed as having old torn lateral ligaments with instability of the right ankle. Again, this constitutes positive evidence since, if the testimonial evidence of an absence of intercurrent, postservice trauma to the ankle is credible, ankle pathology shown in the late 1980's is consistent with inservice injury. The negative evidence includes the absence of medical opinion directly relating appellant's current right ankle disability to military service. As stated in Gilbert v. Derwinski, 1 Vet.App. 49 (1990), "by reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility." Based upon weighing the negative and positive evidence, and resolving reasonable doubt in appellant's favor, the Board concludes that he has chronic residuals of a right ankle injury that more likely were incurred in service. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303. II. Service Connection for Residuals of a Right Shoulder or Thoracic Spine Injury The threshold question to be answered is whether the appellant has presented evidence of well-grounded claims with respect to the issues of service connection for residuals of right shoulder and thoracic spine injuries. A well-grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the Court held that the appellant in that case had not presented a well-grounded claim as a matter of law. The Court pointed out that "unlike civil actions, the Department of Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an allegation; the claimant must submit supporting evidence." If a well-grounded claim has not been presented, the appeal with respect to that issue must fail. In King v. Brown, 5 Vet.App. 19, 21 (1993), the Court held that "evidentiary assertions by the veteran must also be accepted as true for the purpose of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." In this case, the evidentiary assertions as to the claims of service connection for right shoulder or thoracic spine disability are either inherently incredible or beyond the competence of the person making the assertions, as will be explained. The appellant's service medical records during both periods of service, including reports of examinations for service separation dated in February 1981 and April 1983, respectively, make no reference to complaints, findings or diagnoses pertaining to a right shoulder or thoracic spine injury, disease or disability, or history thereof. It is of significant probative value that it was not until September 1988, approximately five and a half years after service, that the appellant initially alleged that he had sustained inservice right shoulder and thoracic spine injuries. A VA outpatient treatment report dated later in September 1988 noted a history of an injury to the back of the shoulder blade reportedly after he had fallen down stairs during service in 1983, at the time he allegedly sustained a right ankle injury. However, that VA outpatient treatment report reflected clinical findings and diagnoses which were limited to the ankle. This history given by appellant years after service of injury to the shoulder blade region in 1983 is unsupported by the actual service medical records, which make no reference to a right shoulder or thoracic spine injury, disease or disability. The service medical records revealed that appellant had slipped and fallen in June and November 1982, but there was no mention of the right shoulder or thoracic spine. In the appellant's brief received in January 1993, he appeared to contradict that history of 1983 inservice injury, by alleging that it occurred in October 1981, when he fell down stairs, injuring his back and lower extremity. See appellant's brief, at p. 2-4. The appellant's testimony at hearings on appeal in June 1991 and August 1992 indicated his uncertainty as to date of injury, but that this incident had occurred and that he had developed arthritis of the spine as a result thereof. See June 1991 hearing transcript, at T. 2, 7-8; and August 1992 hearing transcript, at T. 9. However, the appellant is not qualified to offer medical opinion or diagnosis. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Additionally, it is significant that during the June 1991 and August 1992 hearings, the appellant alleged postservice medical treatment for the ankle shortly after service, but not specifically the right shoulder or thoracic spine. See also August 1992 hearing transcript, at T. 7-9. The Board finds that neither the service medical records nor the postservice clinical evidence definitely show that chronic right shoulder or thoracic spine disability is even currently manifested. A VA orthopedic examination report in February 1989 reflects that there was some tightness and tenderness of the right parathoracic musculature. Service connection may be granted for chronic disease or disability, not subjective complaints or acute symptoms. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). It appears from the record that the appellant's complaints regarding the right shoulder have been centered on the posterior aspect thereof, i.e., the right upper back region encompassing the shoulder blade. That VA orthopedic examination included x-rays of the thoracic spine, which were interpreted by the radiologist as unremarkable. However, after clinical examination of appellant by the orthopedist, she interpreted these x-rays as showing some diminished disc space height of the thoracic spine; and diagnosed "thoracic spine dysfunction." Even assuming that chronic right shoulder and thoracic spine disease or disability are currently manifested, these were initially clinically shown more than five and a half years after service, and have not been shown by credible evidence to be reasonably related to military service. It is reiterated that the appellant is not qualified to offer medical opinion or diagnosis. Espiritu. Moreover, there is no medical evidence or opinion relating any current right shoulder or thoracic spine disability to service. Since there is no competent or credible evidence of chronic right shoulder or thoracic spine disease or disability in service or proximate thereto, or reasonably related to service, these claims are not well-grounded. Grottveit v. Brown, 5 Vet.App. 91 (1993); Grivois v. Brown, 6 Vet.App. 136 (1994). ORDER Service connection for residuals of a right ankle injury is granted. To this extent, the appeal is allowed. The appellant's claims of entitlement to service connection for right shoulder or thoracic spine disability are not well- grounded; and, therefore, the appeal insofar as these issues are concerned is dismissed. HOLLY E. MOEHLMANN 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. (CONTINUED ON NEXT PAGE) 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.