Citation Nr: 0006752 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-08 868A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for right hip arthritis. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD L. M. Rogers, Associate Counsel INTRODUCTION The veteran had active duty in the Army from August 1943 to December 1945. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO), in which the RO denied entitlement to service connection for right hip arthritis. This claim was also developed on the issue of entitlement to an increased rating for post-traumatic stress disorder (PTSD). The Board notes that in a June 1999 rating action, the RO increased the disability evaluation of the PTSD to 100 percent from April 1997. This is a substantial grant of the benefit sought with regard to the issue, and it is no longer subject to appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an informed decision on the veteran's appeal has been obtained by the RO. 2. The claim of entitlement to service connection for right hip arthritis is not supported by competent medical evidence showing that the veteran has right hip arthritis that is related to an in-service disease or injury or to service- connected residuals of shell fragment wounds to the right thigh. CONCLUSION OF LAW The claim of entitlement to service connection for right hip arthritis is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Although the RO made numerous requests to the National Personnel Records Center (NPRC) to obtain the veteran's service medical records, no records could be located and they are presumed to have been destroyed in the fire at that facility in 1973. Alternate records include a report from the Office of the Surgeon General Department of the Army reflecting a September-October 1944 hospitalization for treatment of residuals of shell fragment wounds to the right thigh. There was no mention of right hip arthritis. During a November 1982 VA examination, the veteran had complaints of stiffness and soreness of his right thigh in the mornings, after long immobility, and after long standing. Upon examination, there was no muscle atrophy of the right lower extremity and no scar of the right thigh was identified. The veteran was diagnosed with the residuals of a gunshot wound to the right thigh. During a February 1990 VA examination, the veteran reported that in September 1944 he suffered from a gunshot wound to his right thigh. According to the veteran, the bullet entered the inner area of his upper thigh and exited through the right buttock. The veteran was diagnosed with a gunshot wound to the right thigh by history and with osteoarthritis of both hips. During an August 1997 VA examination, it was noted that the veteran had a history of degenerative osteoarthritis of the hips. Upon examination, the hip joints showed a painful 50 percent reduction in internal and external rotation bilaterally. The examination also revealed a gunshot wound in the right buttock area, well-healed and without significant loss of muscle mass. II. Laws and Regulations Service connection can be granted for any disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110 (West 1991). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a 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 is not, in fact, shown to be chronic or when 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). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304 (1999). The threshold question that must be resolved with regard to the claim is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd , 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well- grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App.91, 92-93 (1993). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)(table). Alternatively, the second and third elements can be satisfied by evidence showing that a disorder was noted during service or any applicable presumptive period, evidence of post- service continuity of symptomatology, and medical or, in some circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. In addition, if the claim for service connection pertains to a disease rather than the residuals of an injury, a well grounded claim can be established by evidence showing a chronic disease in service or during any applicable presumptive period and present disability from that disease. See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997); 38 C.F.R. § 3.303(b). 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). As with a claim for direct service connection, a claim for secondary service connection must be well grounded. Jones v. Brown, 7 Vet.App. 134, 137-38 (1994). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability(but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet.App. 439 (1995) A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit, 5 Vet. App. at 93. A lay person is however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence maybe sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is required, however, to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn v. West, 12 Vet. App. 296 (1999). If the veteran fails to submit evidence showing that the claim is well grounded, VA is under no duty to assist her in further development of the claim. See Schroeder v. West, 12 Vet. App. 184 (1999). VA may, however, dependent on the facts of the case, have a duty to notify her of the evidence needed to support her claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). The veteran has not indicated the existence of any evidence that, if obtained, would make his claim well-grounded. The Board notes that, regardless of numerous attempts to obtain the veteran's service medical records, none could be located. If the service medical records cannot be located, VA has a heightened duty to explain its findings and conclusion. Ohare v. Derwinski, 1 Vet. App. 365 (1991). VA has no further obligation, therefore, to notify him of the evidence needed to support his claim. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). III. Analysis An August 1997 VA examination shows a diagnosis of degenerative osteoarthritis of the right hip. Therefore, the Board finds the first Caluza element has been satisfied because there is a current medical diagnosis of a disability. Caluza, 7 Vet. App. at 506. The veteran has provided lay evidence indicating that he injured his right thigh during service, and that his current right hip arthritis is related to that injury. As a lay person the veteran is competent to provide evidence of an observable disorder, but he is not competent to provide evidence that requires medical expertise. Grottveit, 5 Vet. App. at 93; Savage, 10 Vet. App. at 497. The record reflects that the veteran is a combat veteran and that he did sustain a gunshot wound to his right thigh during service. Still, to establish a well grounded claim, there must be competent evidence of a causal nexus between the in-service event and the present disability. Although medical evidence shows that there was a gunshot wound to the right thigh and the veteran has degenerative osteoarthritis of the right hip, the veteran has not submitted evidence of an etiological relationship between his right hip arthritis and service. Therefore, the evidence does not suggest that the current right hip arthritis is related to an in-service disease or injury. Wade v. West, 11 Vet. App. 302 (1998). In addition, no competent medical evidence has been presented to support the veteran's assertions that his current right hip arthritis is related, directly or otherwise, to the service-connected residuals of shell fragment wounds to the right thigh. Therefore, the claim of service connection on a secondary basis is not plausible. See 38 U.S.C.A. § 5107. Although the Board has carefully considered the contentions provided by the veteran, the claim of entitlement to service connection for right hip arthritis is not well-grounded because the medical evidence does not show that the veteran has right hip arthritis that is related to an in-service disease or injury or the service-connected right thigh disability. ORDER Entitlement to service connection for right hip arthritis is denied. _____________________________________ THOMAS J. DANNAHER Member, Board of Veterans' Appeals