BVA9505835 DOCKET NO. 92-15 082 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUES !. Entitlement to service connection for a fracture of the right fibula as secondary to service-connected residuals of excision of an osteochondroma of the left femur. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a disorder of the thoracic spine, variously diagnosed. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from November 1975 to January 1980 and from January 1981 to January 1987. This appeal arose from a December 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California. The RO granted entitlement to service connection for residuals of excision of an osteochondroma of the left femur which was assigned a 10 percent evaluation; and denied entitlement to service connection for a fracture of the right fibula, and denied entitlement to service connection for chronic disabilities of the left ankle, cervical spine, and thoracic spine. The Board of Veterans' Appeals (Board) REMANDED the case to the RO for further development in April 1994. In a rating decision issued in October 1994, the RO granted entitlement to service connection for chronic cervical strain which was assigned a noncompensable evaluation, and affirmed the prior denial of entitlement to service connection for a fracture of the right fibula as secondary to service-connected residuals of excision of an osteochondroma of the left femur, and chronic disorders of the left ankle and thoracic spine. The case has been returned for final appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that due to instability of his service- connected left femur disability, he lost his balance and fell thereby sustaining a fracture of his right ankle. He further argues that the service as well as post service medical records show that he has complained of chronic pain in the thoracic spine for many years thereby warranting a grant of service connection. The appellant avers that traumatic injury of his left ankle in service resulted in permanent disability, residuals of which he experiences to the present. 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 veteran's claims file. 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 veteran has not submitted evidence of well grounded claims for service connection for a fracture of the right fibula as secondary to service-connected residuals of an excision of a osteochondroma of the left femur and service connection for a left ankle disorder, and that the record supports a grant of entitlement to service connection for a disorder of the thoracic(dorsal) spine, variously diagnosed. FINDINGS OF FACT 1. The claims for service connection for a fracture of the right fibula as secondary to service-connected residuals of an excision of an osteochondroma of the left femur and service connection for a left ankle disorder are not supported by cognizable evidence showing that the claims are plausible. 2. The service medical records show that the veteran experienced pain in the thoracic region of the spine for years. 3. The post service record shows the veteran has been diagnosed with dorsal(thoracic) sprain/strain and radiographic studies have demonstrated degenerative changes. CONCLUSIONS OF LAW 1. The claim for service connection for a fracture of the right fibula as secondary to service-connected residuals of excision of an osteochondroma of the left femur is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for service connection for a left ankle disorder is not well grounded. 38 U.S.C.A. § 5107. 3. A disorder of the thoracic(dorsal) spine, variously diagnosed, was incurred in service. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303(b ) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a fracture of the right fibula as secondary to service-connected residuals of excision of an osteochondroma of the left femur and service connection for a left ankle disorder. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claims are well grounded; that is, that the claims are plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claims for service connection for a fracture of the right fibula as secondary to service-connected residuals of excision of an osteochondroma of the left femur and service connection for a left ankle disorder are not well grounded and should be dismissed. Service connection may be granted for any disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107. Service connection may be granted for any disorder which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claims are possible or plausible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for well grounded claims, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claims not well grounded. The veteran contends that his fracture of the right fibula was occasioned as the result of instability of his left lower extremity due to his service-connected residuals of excision of an osteochondroma of the left femur. There is no competent medical evidence of record supporting his contention. In this regard, the Board observes that the veteran was privately hospitalized in June 1990 subsequent to slipping and twisting his ankle. It was noted that he had fallen back while fishing on a lake bank. A radiographic study disclosed a fracture of the right fibula. Additional documentation pertaining to his medical treatment noted that he had slipped and fallen in a gravel pit. His symptoms were reported to involve pain, swelling, and a yellowish discoloration. Additional records pertaining to his follow up treatment by a private physician during July and August 1990 are on file. At an October 1990 VA examination the veteran reported that during the previous June he had fallen as the result of instability of the left knee thereby sustaining a fracture of the right fibula. The examination diagnosis was status post right fibular fracture. An x-ray of the right ankle was interpreted as unremarkable right tibia and fibula. There is no cognizable evidence of record relating the right fibula fracture to the service-connected disability of the left femur. No VA or non-VA medical health professional has expressed an opinion linking the service-connected disability of the left femur as a causative factor contributing to the veteran's sustention of a right fibula fracture. The veteran has failed to present a well grounded claim as to this issue and his appeal must be dismissed. As to service connection for a left ankle disorder, the Board observes that the service medical records show the veteran was in a motorcycle accident in August 1976. His only injury was a painful left ankle. There was tenderness on the lateral foot and lateral malleolus. An x-ray was interpreted as negative for fracture. The clinical assessment was a soft tissue injury/sprain/contusions, abrasions. The diagnosis was sprain. When examined for separation from active service in January 1987, the veteran denied a history of foot trouble. The clinical evaluation of the feet was reported as normal. At an October 1990 VA examination the veteran reported that because of surgery for his service-connected left femur, he had had difficulty with his left ankle. It popped with range of motion but did not swell or give out. An examination of the left ankle disclosed a full range of motion with no tenderness, swelling or deformity. The examination diagnosis was left ankle sprain. An x-ray of the left ankle was interpreted as negative for any abnormality. The Board finds no competent medical evidence of record to demonstrate that the veteran currently has a disorder of the left ankle related to service or secondary to his service-connected disability of the left femur. The VA examiner diagnosed left ankle sprain in October 1990 on the basis of the veteran's subjectively provided symptomatologic complaints; however, no abnormality of the left ankle was found on direct clinical examination or on the basis of radiographic study. See Reonal v. Brown, 4 Vet App. 458, 459-61 (1993). As the veteran is not shown to have a disorder of the left ankle related to service or secondary to his service-connected disability of the left femur, the Board concludes that the veteran has not presented cognizable evidence in support of his claim and his appeal must be dismissed. The Board's determination as to these two issues has included the testimony provided by the veteran at an RO hearing wherein he elaborated on the history of his injuries of the right fibula and left ankle. The Board recognizes that the veteran's claims have been disposed of in a manner different from that utilized by the RO. The Board therefore considered whether the claimant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claims and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision. In this regard, the Board points out that by the action of dismissing his claims, the Board has not burdened the veteran with a prior final adjudication on the merits. Thus, if he is able to submit well grounded claims in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claims after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The Board also observes that the RO, in assuming that the veteran's claims were well grounded, accorded him greater consideration than his claims in fact warranted under the circumstances. Bernard. To remand the case to the RO for consideration of the issue of whether the appellant's claims are well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). II. Entitlement to service connection for a disorder of the thoracic spine, variously diagnosed. Initially the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). The service medical records show that in September 1984 the veteran requested treatment for complaints of mid back pain of 24 hours duration. He also had pain in his neck and lower back. Clinical findings included tenderness just to the right of the T3 to T5 area. The clinical assessment was mid back pain. In April 1986 the appellant reported with complaints of symptomatology including back pain in the right sacral area. He reported having had this problem for years. An examination concluded in clinical assessments of mild back spasm, and minor trapezius muscle spasm. When examined for separation from service in January 1987 the veteran denied a history of recurrent back pain and the spine was reported as normal. At an October 1990 VA examination the veteran could recall no specific injury to his upper thoracic spine. He recalled having developed mid back pain beginning in the mid 1980's. He had been receiving treatment from a chiropractor with some relief. On examination there was tenderness in the mid thoracic spine area. The examiner diagnosed degenerative joint disease of the thoracic spine, and noted that the x-ray of the thoracic spine should be seen. The x-ray of the thoracic spine was interpreted as negative by the radiologist. On file is a letter dated in October 1991, from Lidia K. Wolny, D.C. She diagnosed, in relevant part, pain in the thoracic spine and cervicodorsal(thoracic) sprain/strain. The veteran presented testimony as to the history of his thoracic spine symptomatology at an RO hearing conducted in October 1990. At an October 1994 VA orthopedic examination the veteran complained of tenderness to pressure over the spinous processes from the occiput to the upper dorsal spine. He also noted some discomfort over the second occiput nerve just to the left of the midline at the base of the occiput. He appeared to have a full range of motion in the thoracic spine. An x-ray of the thoracic spine was interpreted as revealing minor lower thoracic degenerative changes. The radiologist noted the presence of minor marginal osteophyte formation. The Board is of the opinion that the veteran's thoracic spine disability, variously diagnosed as sprain, strain, and found to have degenerative arthritic changes, cannot satisfactorily be dissociated from service medical documentation of years of complaints of mid back symptomatology. There is very little time from separation from service to when the veteran was in treatment for symptomatic complaints related to his thoracic spine. The Board is of the opinion that the veteran's post service variously diagnosed thoracic spine disability originated coincident with active service, thereby warranting entitlement to a grant of service connection. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303(b). ORDER The claim for service connection for a fracture of the right ankle as secondary to service-connected residuals of excision of an osteochondroma of the left femur is dismissed. The claim for service connection for a left ankle disorder is dismissed. Entitlement to service connection for a disorder of the thoracic(dorsal) spine, variously diagnosed, is granted. ALBERT D. TUTERA 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. 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.