Citation Nr: 0005447 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-16 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from January 1966 to January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from determinations from the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a left knee disability. FINDING OF FACT The service medical records do not show a left knee injury; there is no competent evidence linking the veteran's current left knee disability to documented right knee or left thigh injuries in service many years ago or otherwise linking it to service or to claimed continuity of symptomatology since service. CONCLUSION OF LAW The claim of entitlement to service connection for a left knee disability is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran's service entrance examination report, dated in January 1966, contains a notation that a knee examination was normal and that there was no atrophy or instability. The separation examination report, dated November 7, 1967, indicates that the veteran 's lower extremities and musculoskeletal system were normal. The veteran denied a history of trick or locked knee and of lameness. On November 14, 1967, the veteran complained of pain to the medial aspect of his right knee. The impression was a probable muscle strain. A service department record, dated December "1968," which appears actually to have been written in December 1967, indicates that the veteran complained of pain in the upper left leg following a football game. Physical examination revealed tenderness of the left mid-thigh. The impression was a probable muscle injury. An X-ray examination was recommended, apparently to rule out a fracture, and the veteran was to be placed on profile. The report of any X-ray examination is not of record. The remaining service medical records show no further complaints of, or treatment for a right knee or left mid-thigh injury. Post-service private medical records, dated in November 1972, show the veteran reported multiple injuries of the left knee dating back to 1965 "when he sustained two injuries at that time with pain over the medical aspect." That was reportedly followed by multiple episodes of periodic locking. A week ago, he had reinjured his knee while throwing a ball and was unable to straighten it as he had been able to do in the past. It was noted that he denied other injuries. An X- ray examination showed that the bones, joints and soft tissues of the left knee were normal. The veteran underwent arthrotomy, medial meniscectomy, of the left knee. The final diagnosis at hospital discharge was internal derangement of the left knee. Private medical records dated from 1984 to 1989, show that the veteran reported a history of a medial meniscectomy in 1971. The veteran stated that in 1984 he pulled a hamstring in his left leg, fell and heard his right knee pop while playing baseball and in 1986 had a pop in the posterior lateral aspect of his left knee during a baseball game. He stated that shortly thereafter, he stepped off of a curb and had another pop in his left knee. An X-ray examination showed medial narrowing and osteophytic changes. In a private medical report dated February 1989, the veteran complained of left knee pain as a result of sitting with his legs extended and propped up on a table. He underwent arthroscopy, chondral shaving and partial medial meniscectomy of the left knee in March 1989. The diagnosis was left lateral medial meniscus tear. In March 1998 the veteran filed his application for service connection for a left knee injury of October 1, 1967. In his substantive appeal, VA Form 9, the veteran reported that he originally injured his left knee in 1965 prior to service, that he reinjured his knee during "boot camp" at Ford Ord in 1966, and that he injured his left knee again in 1967 while playing football. The RO obtained the veteran's service personnel records in November 1998. In response to the RO's request for the veteran's clinical records pertaining to a left knee injury, the National Personnel Records Center (NPRC) indicated in June 1999, that no records were found. A subsequent search by the NPRC in July 1999 confirmed that that no records were found. Criteria 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 [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the U.S. Court of Appeals for Veterans Claims (Court) held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." For a claim to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy v. Derwinski, 1 Vet. App. 78 (1990). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show 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". 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). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. §§ 1111, 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999). Service connection may also be granted for a 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). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). Analysis The threshold question to be decided in the veteran's appeal is whether he has presented evidence of a well-grounded claim. "[A] person who submits a claim for benefits under a law administered by the Secretary 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); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well-grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). The veteran has reported a preservice history of a left knee injury. The regulations state that veterans are presumed to be in sound condition when accepted and enrolled for service, except for disorders noted at entrance into service. 38 C.F.R. § 3.304(b). The presumption attaches only where there has been an induction examination in which the disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 238 (1994). In this case the veteran was examined at the time of his enlistment into service. The entrance examination report, dated in January 1966, specifically states that an examination of the knee was normal and that there was no atrophy or instability. The veteran was found to be qualified for service at that time. Based on those facts, the Board finds that the veteran is entitled to the presumption of soundness on service examination. In order to rebut the presumption of soundness there must be clear and unmistakable evidence that an injury existed prior to service. 38 C.F.R. § 3.304. The only evidence of a preexisting left knee disorder is the statements of the veteran given as to his medical history. It is clear that the veteran's reported history alone is insufficent to rebut the presumption of soundness in view of the normal finding that were specifically noted on service entrance examination. The Board finds that clear and convincing evidence has not been presented which establishes that the veteran had a left knee disorder that preexisted service entrance. See Crowe v. Brown, 7 Vet. App. 238 (1994). The veteran has contended that his left knee disability is due to an injury during boot camp in 1966. However, the record is negative for a left knee injury in 1966. Service medical records establish that the veteran injured his right knee in November 1967. Treating medical personnel reported that the veteran complained of pain over the medial aspect of the right knee and the diagnosis was a probable muscle strain. The veteran claims that he injured his left knee in a football game during service. There is a service medical record, dated in December "1968," which apparently should have been dated "1967," that reflects a football injury. However, that injury was to the upper left leg in the mid- thigh area rather than the left knee. There was no complaint of a left knee injury or a diagnosis of a left knee disorder at that time. The medical evidence does not show a left knee injury in service or any relevant abnormality on the separation examination. The veteran did not file a claim for service connection until more than 30 years after service. The post-service medical records indicate that the veteran reported several post- service injuries to the left knee, including one in 1972, at which time it was noted that the original injury had been in 1965. Consequently, the determinant issue in this case is whether the veteran's current left knee disability is attributable to an in-service injury or is otherwise related to service. This is a question of medical etiology; therefore, competent medical evidence is required to well ground the claim. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The veteran has not provided or identified competent medical evidence of a nexus between any in-service injury and his current condition. The only evidence relating the current left knee disability to an in-service injury consists of statements from the veteran. As the evidence does not establish that the veteran possesses a recognized degree of medical knowledge, his own opinions as to medical diagnoses and/or causation are not competent. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Absent evidence of a link between the in-service injury and the current condition, the claim is not well grounded. Essentially, the veteran argues that his claim is well grounded under the 38 C.F.R. § 3.303(b) continuity-of- symptomatology alternative criteria and Savage v. Gober, 10 Vet. App. 488 (1997). However, the post-service medical evidence does not even mention an in-service left knee injury or reflect a history of knee complaints since service. In any event, a left knee injury was not "noted" in service, for purposes of applying the section 3.303(b) alternative criteria. The service medical records show that the veteran complained of a right knee injury and a left thigh injury but not a left knee injury. The service medical records show no findings or diagnosis of a left knee injury or any other condition affecting the left knee. The issue here is the cause of the veteran's low back disorder, a matter that requires competent, medical evidence, especially given the history of several injuries to his left knee since separation from service; thus, neither he nor any other lay person can credibly testify as to the origin of his current condition. Hodges v. West, No. 98-1275 (U.S. Vet. App. Jan. 12, 2000). Accordingly, the claim is not well grounded and must be denied. As the veteran's claim for service connection for a left knee disability is not well grounded, the doctrine of reasonable doubt has no application to this case. The Court has held that if the appellant fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1999). The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well-grounded claim, and the veteran has not indicated the existence of any evidence that has not already been obtained that would well ground his claim. In fact, the RO, requested a search for the records identified by the veteran and the NRPC indicated that no records were found. He does not allege that any existing medical opinions include a medical opinion relating his current left knee disability to active service. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, , 126 F.3d 1464 (Fed. Cir. 1997). The veteran's service representative contends that VA has expanded its duty to assist because it is required to fully develop a claim before making a decision on claims that are not well-grounded. The Court held that under 38 U.S.C.A. § 5107(a), VA has a duty to assist only those appellants who have established well-grounded claims. Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). The Court's holdings on the issue of VA's duty to assist in connection with the well- grounded claim determination are quite clear. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.5 (1999). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application for service connection. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77- 78 (1995); Mcknight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER Entitlement to service connection for a left knee disability is denied. JANE E. SHARP Member, Board of Veterans' Appeals