BVA9506460 DOCKET NO. 92-20 353 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for internal derangement of the right knee. 2. Entitlement to service connection for internal derangement of the left knee. 3. Entitlement to service connection for residuals of a stress fracture to the right heel. 4. Entitlement to service connection for residuals of a stress fracture of the left heel. 5. Entitlement to service connection for residuals of a stress fracture of the right ankle. 6. Entitlement to service connection for residuals of a stress fracture to the left ankle. REPRESENTATION Appellant represented by: Non Commissioned Officers Association of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from February 1970 to February 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a , September 1990 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for internal derangement of the left and right knees, entitlement to service connection for residuals of stress fractures of the right and left heels, entitlement to service connection for residuals of stress fractures of the left and right ankles, and entitlement to service connection for hearing loss. A notice of disagreement was received as to the issues listed on the front page of this decision in June 1991. The statement of the case as to those issues was sent to the veteran in June 1991. In correspondence received in August 1991, the veteran indicated that he was withdrawing the issue of entitlement to service connection for hearing loss. The substantive appeal as to the issues listed on the front page of this decision was received in August 1991. In a July 1993 decision, the case was remanded to the RO for further development. The Board requested a medical opinion from an independent medical expert (IME) in January 1995. The IME's opinion was dated in January 1995. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he suffered from bilateral stress fractures of the heels and ankles during service which has resulted in residual disability to include pain and discomfort. He further contends that he injured both knees during basic training in service which also has resulted in residual disability. Alternatively, he also contends that his bilateral ankle and heel disabilities caused his bilateral knee disability. 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 is not entitled to residuals of bilateral stress fractures of the heels and ankles. Further, it is the decision of the Board that the veteran's claim of entitlement to service connection for internal derangement of the right and left knees is not well grounded. FINDINGS OF FACT 1. The veteran had stress fractures of the heels and calcanei diagnosed during service which resolved with treatment and did not result in a lasting disability. 2. The evidence does not establish the presence of a disability of the right or left knee until many years after service nor does it establish that it is related to service in any way. CONCLUSIONS OF LAW 1. Entitlement to service connection for residuals of bilateral stress fractures of the heels and ankles is not warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303(b) (1994). 2. The claim of entitlement to service connection for internal derangement of the right and left knees is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the issues of entitlement to service connection for bilateral stress fractures of the heels and ankles and entitlement to service connection for internal derangement of the right and left knees are currently in appellate status. The issues will be addressed separately as set forth below. I. Service Connection for Bilateral Stress Fractures of the Heels and Ankles The veteran's claim as to this issue is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). 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 where the condition noted during service 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) (1994). A review of the record reveals that the veteran served on active duty from February 1970 to February 1972. His service medical records reflect treatment for his ankles and heels. In March 1970, the veteran was treated for swollen and painful ankles. The examiner determined that he had possible stress fractures of the heels and calcanei. The veteran's discharge examination did not reveal any abnormalities. Following service, there are no medical records reflecting treatment for the veteran's heels or ankles. The veteran originally filed an application for VA compensation benefits in June 1990. In conjunction with that claim, the veteran was afforded a VA examination in September 1993. At that time, the veteran reported that the onset of bilateral ankle and heel pain occurred while he was in the service. Physical examination revealed that the veteran ambulated with a satisfactory gait. Superficial varicosities were present about the left ankle. Both ankles had 10 degrees of dorsiflexion and 35 degrees of plantar flexion. No swelling was noted, but tenderness to palpation was noted over the area of the medial malleolar region bilaterally. The veteran had some pain with lateral compression of the calcaneus bilaterally and also had tenderness to palpation of the heel pad area at the insertion of the plantar fascia onto the calcaneus. He performed a satisfactory heel and toe walk and was able to squat and arise again. Dorsalis pedis pulses were 3+ bilaterally. X-rays of the heels and ankles were essentially normal. The diagnoses were chronic ankle and foot pain with old stress fractures per patient history and bilateral fasciitis and superficial varicosities of the left ankle. In support of his claim, a statement dated in July 1991 was received from the veteran's spouse. She related that the veteran suffered from stress fractures of the feet, ankles, and heels during physical training in the service. She asserted that the injuries sustained in service resulted in lasting disabilities of the feet, ankles, and heels. In addition, a lay statement was received in August 1991 from an individual who served with the veteran in service. The individual related that the veteran suffered from bruising and swelling of the feet during service and has suffered from feet and lower leg problems since that time. In further support of his claim, the veteran testified at a personal hearing before a member of the Board in October 1992. At that time, the veteran related that he sustained bilateral stress fractures of the heels and ankles during physical training in service. He related that he still had soreness and discomfort at the time of his discharge examination, but felt that the pain was something he just had to endure. In January 1995, the Board requested a medical opinion from an IME which was received later that month. The IME, who is an expert in the field of orthopedics, reviewed the veteran's claims file. In regard to the veteran's alleged bilateral ankle and heel disabilities, the IME reviewed the veteran's service medical records, his current VA examination, and his contentions. The IME observed that a diagnosis of bilateral stress fractures was made in service, however, he noted that no radiographic evidence was of record. The IME noted that apparently the diagnosis was made on a clinical basis. The IME further observed that a recent September 1993 VA examination revealed diagnoses of chronic ankle and foot pain with a clinical diagnosis of old stress fractures per patient history although there was no radiographic evidence of stress fractures to the calcaneus or the distal tibia ankle region bilaterally. He also reported that there was evidence of bilateral fasciitis and superficial varicosities of the left ankle. He noted that, again, there were no radiographic abnormalities except for bilateral plantar faciitis. The IME concluded that the diagnosis of stress fractures of the right and left calcaneus as well as the right and left ankle were not documented with the current medical record. He explained that stress fractures are predominantly a clinical and radiographic diagnosis. He noted that although there was evidence of acute onset heel pain as well as ankle pain and swelling bilaterally related to rapid increase in activity, all of which would go along with the diagnosis of stress fracture, there was no supporting evidence such as radiographs indicating findings of stress fracture or a bone scan indicating a stress fracture. He observed that there was sufficient clinical evidence for the diagnosis of stress fractures in all 4 of these bones although he noted that stress fractures occurring in all 4 bones in itself would be extremely uncommon. However, he further noted that most stress fractures improve over the course of 6 months to 1 year. Therefore, he opined that if subsequent radiographs showed no further evidence of sequelae of stress fractures, such as post-traumatic arthritis or malalignment of the calcaneus or ankles, that stress fractures in and of themselves would be very unlikely to have caused a long period, 20 years, of disability. In summary, the Board observes that although the veteran received treatment for bilateral ankle and heel problems during service, his discharge examination did not reveal any abnormalities. Subsequently, the veteran did not seek treatment for over 20 years and did not apply for VA benefits until 1990. Currently, although pain was noted during his VA examination, x-rays revealed essentially normal ankles and heels. In addition, the IME found that although stress fractures of the heels and ankles were not radiographically demonstrated during service, there was sufficient clinical evidence that the veteran suffered from those disorders during service. However, the IME concluded that it was very unlikely stress fractures incurred during service would have caused a 20 year period of disability. As noted above, 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." The Board notes that the veteran was treated in March 1970 for ankle and heel problems, however, he was not treated during the next two years of service for ankle or heel disability and his ankles and heels were noted to be normal upon discharge. The veteran asserts that he did not seek further treatment because he did not want to be discharged from service. However, the Board observes that he was in fact seen on several occasions in 1971 for unrelated problems, but did not report any problems involving his lower extremities. Likewise, no abnormalities were noted upon discharge. In weighing the conflicts between the veteran's statements and the entries in the service medical records, the reports in the service medical records, which were written at the time of the events in question, have far greater probative value than the veteran's recollections of events that occurred over 20 years ago. Taken as a whole, the evidence compels the conclusion that the veteran sought and obtained medical care in the last year of his active service, but he did not present any complaints pertaining to an ankle and heel disability, and the medical personnel who observed him at the time did not detect any symptoms of an ankle or heel disability. Therefore, the Board finds that the clinical findings during service are insufficient to establish chronicity during service, and, accordingly, per the above-cited regulations, continuity of symptomatology must be shown in order to establish service connection. Per the cited regulation noted above, continuity of symptomatology is required where the condition noted during service 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) (1994). The lay statements and the veteran's own statements indicated that he has suffered from continuous pain and suffering of the ankles and heels due to stress fractures incurred in service, those assertions are not supported by the record. As pointed out above, the veteran did not seek medical treatment for over 20 years after discharge when he was afforded a VA examination in conjunction with this claim. This examination resulted in a diagnosis of chronic ankle and foot pain with old stress fractures per patient history, however, there was no radiographic evidence of a disability or stress fractures. The Board observes that the veteran provided his own history of having been diagnosed with stress fractures in service. When a medical opinion relies at least partially on the veteran's rendition of his medical history, the Board is not bound to accept the medical conclusions, given 20 years after separation from service, as they have no greater probative value than the facts alleged by the veteran. Swann v. Brown, 5 Vet.App. 229, 233 (1993). Thus, since the examiner's diagnosis of a history of stress fractures merely reflects the veteran's own history and does not indicate that he currently suffers from that disability as stress fractures were not demonstrated on x- ray, the examiner's opinion is of little probative value. Moreover, the IME concluded that it was highly unlikely that stress fractures incurred during service would have caused a 20 year period of disability. The Board finds that the IME's opinion is highly probative since he is a specialist in the field of orthopedics and since he had an opportunity to thoroughly review all of the veteran's medical treatment records contained in the claims file. As such, the Board places the greater probative weight on the IME's opinion. In addition, although the lay statements indicated that the veteran sustained injuries of the feet, ankles, and heels during service which caused lasting disabilities, the Board finds that these two individuals can attest to their observations, but they have not been shown to be capable of making medical conclusions, thus, their statements regarding medical causation are not probative. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The Board has considered the credibility and weight of the veteran's assertions and the evidence of record and has given full consideration to the benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b) (West 1991). However, the Board finds that the preponderance of the evidence in this case is against the veteran's claim. In light of the findings set forth above, the Board finds that although the veteran may have sustained injury to his heels and ankles during service, the injury was acute in nature and resolved with treatment as evidenced by the lack of any further treatment in service, the normal discharge examination, the fact that the veteran did not file an application for compensation benefits until 1990, the lack of any treatment for residual disability for over 20 years after separation, and the IME's opinion as indicated above. Therefore, since there has been no showing of chronicity or continuity of symptomatology since service and since an expert in the field of orthopedics opined that stress fractures in service did not result in residual disability, the Board concludes that entitlement to service connection for residuals of bilateral stress fractures of the heels and ankles is not warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303(b) (1994). II. Service Connection for Internal Derangement of the Right and Left Knees The applicable laws and regulations state that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). In addition, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). The appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a plausible claim, one which is meritorious on its own or is 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) (West 1991). Murphy v. Derwinski, 1 Vet.App. 78, 80 (1990) The claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If service medical records do not show the claimed disability and there is no medical evidence to link a current disability with events in service or with a service-connected disability, then the claim is not well-grounded. Montgomery v. Brown, 4 Vet.App. 343 (1993). A review of the veteran's service medical records revealed no complaints, findings, or treatment pertaining to the knees. The veteran's discharge examination was negative for any abnormalities. Following service, the veteran was initially treated for internal derangement of the right knee with probable bucket handle tear and locked joint, medial meniscus, in July 1978 after he injured the knee in a water skiing accident. The veteran underwent a right knee meniscectomy. At that time, the veteran did not provide a history of any prior injury to the right knee. Subsequently, the veteran was treated for a torn medial meniscus of the left knee in 1981. The private treatment records revealed that he sustained a twisting injury to the knee while sailing on a catamaran in March 1981. The veteran underwent a left knee meniscectomy. It was noted that the veteran had sustained a similar injury three years before to the right knee, but the veteran did not provide a history of injury to either knee prior to 1978. The Board observes that the veteran was treated at the same private facility for both the left and the right knee injuries. Although the examining physician recorded the veteran's past pertinent medical history including childhood medical treatment, at no time was it reported by the veteran that he had sustained an injury to either knee in service. In fact, in July 1991, the examining physician reported that the veteran recently related that he believed that his knee disabilities were related to stress fractures he reportedly sustained in service. The examining physician noted that the veteran had not previously provided a history of stress fractures. The examining physician further reported that the veteran had presented several hypotheticals, but that he could not give the veteran the answers that he wanted. The examining physician did not state what type of hypothetical questions that the veteran asked him. In support of his claim, a statement dated in July 1991 was received from the veteran's spouse. She related that the veteran injured both knees during physical training due to the stressful exercises. She further asserted that since his heels and ankles were weakened due to stress fractures incurred in service, both knees eventually broke down. Additionally, a lay statement was received in August 1991 from an individual who served with him in service. As noted above, the individual related that the veteran suffered from bruising and swelling of the feet during service and has suffered from feet and lower leg problems since that time. He further related that he believed that the feet and lower leg problems that veteran had in service resulted in his knee disabilities. In further support of his claim, the veteran testified at a personal hearing before a member of the Board in October 1992. At that time, he related that he injured his knees at the same time he injured his ankles and heels during service, but that the examiners inservice did not pay attention to his knee disabilities due to the severity of his bilateral ankle and heel disabilities. He was unsure whether he complained of his knee problems in service. He reported that he first received treatment for a knee disability after his 1987 and 1981 accidents. The veteran asserted that the two knee accidents aggravated his knees which were deteriorating due to the physical demands placed on them in service. The Board notes that alternatively, he also contended that his bilateral ankle and heel disabilities caused his bilateral knee disabilities. In January 1995, the Board requested a medical opinion from an IME which was received later that month. The IME, who is an expert in the field of orthopedics, reviewed the veteran's claims file. In regard to the veteran's alleged bilateral knee disabilities, the IME noted that private medical records reflected skiing and sailing accident in 1978 and in 1981 with injuries to the right and left knee, respectively. He further noted that the veteran contended at his personal hearing that although he felt that he sustained bilateral knee injuries at the time of his ankle and foot injuries, he did not sustain further problems with the knees until the 1978 and 1981 knee injuries. The IME also acknowledged the veteran's contention that his ankle and foot disabilities in service contributed to degeneration of the right and left knees. After reviewing the veteran's service medical records, private medical records, and contentions, the IME found that the veteran's right and left knee disabilities clearly originated from the 1978 and 1981 post-service accidents and were not related to service. He noted that it would be extremely unlikely that any stress fractures of the feet or ankles would cause significant degeneration of the knee joints or cause permanent disability, chronic disability, or acute disability to the knees. He further opined that even if the veteran sustained some mild injuries at the time of service, there was clear evidence in the record that the major contributing factor to the veteran's knee problems was in 1978 and 1981. The IME concluded that there was no medical evidence of an injury to the knees during service, that any ankle and/or foot injuries in service did not contribute to knee disabilities, and that the veteran's bilateral knee disabilities were due to the 1978 and 1981 accidents and were unrelated to service. Initially, as previously pointed out, the individuals who submitted the lay statements have not been shown to be capable of making medical conclusions, therefore, their statements involving medical causation are not probative. Espiritu. In summary, the record revealed that the veteran was not treated for a disability of either knee in service and his discharge examination was normal, he sustained a trauma to the right knee is 1978 and a trauma to the left knee in 1981, he did not report a history of a disability of either knee prior to the 1978 accident to his private examiners, and the IME who is a specialist in orthopedics determined that the veteran's knee disabilities were due to the 1978 and 1981 accidents and were unrelated to any incident in service. When all of the evidence is taken into account, it is clear that the veteran's disabilities of the right and left knees were first manifested many years after service and developed independently of service or any occurrence or problem therein. There is no medical substantiation for the veteran's assertions that he sustained bilateral knee problems in service or that ankle and heel problems occurring in service caused a deterioration of either knee. Rather, there is evidence that his knee disabilities resulted from the 1978 and 1981 accidents. Therefore, the Board finds that the veteran has not presented any competent medical evidence that he has a disability of the right or left knee as a result of injury in service or as a result of any ankle and or heel problems in service. The United States Court of Veterans Appeals (Court) has stated that, in determining whether a claim is well grounded, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) citing Murphy. The veteran does not meet the burden imposed by 38 U.S.C.A. § 5107(a) (West 1991), merely by presenting his own lay testimony because lay persons are not competent to offer medical opinions. Grottveit citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Grottveit citing Tirpak. Likewise, the veteran has not submitted competent medical evidence to link his current right and/or left knee disabilities with events in service which is necessary to establish a well- grounded claim. Montgomery. Therefore, the Board finds that since the veteran has only submitted his own unsubstantiated allegation as evidence that he a disability of the right and/or left knee to include internal derangement of either knee to any incident in service, nor has he submitted evidence that would justify a belief by a fair and impartial individual that his claim is well-grounded. Accordingly, due to the lack of supporting medical evidence, the Board concludes that the veteran's claim for entitlement to service connection for internal derangement of the right and left knees is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Board notes that since the veteran has not been granted entitlement to service connection for bilateral stress fractures of the ankles and/or heels, 38 C.F.R. § 3.310(a) (1994), is not for application in this case. ORDER The appeal as to the issue of entitlement to service connection for bilateral stress fractures of the heels and ankles is denied. The appeal as to the issue of entitlement to service connection for internal derangement of the right and left knees is dismissed. E. M. KRENZER 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.