BVA9507323 DOCKET NO. 93-12 667 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for residuals of fracture of the low back and left arm. 2. Entitlement to service connection for rheumatoid arthritis with joint inflammation of the right leg, knee, ankle, and elbow, and the neck. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from October 1965 to September 1968. Additional records, including service personnel records and evidence of the veteran's Purple Heart medal, were received at the Board of Veterans' Appeals (Board) in May 1994. Such records have been reviewed and in each case found to be either cumulative and consistent with previously submitted evidence, or not relevant to the instant appeal. For these reasons, such evidence will not be referred to the regional office for initial review. 38 C.F.R. § 20.1304(a)(c) (1994). The Board notes that in his claim for compensation received in November 1991, the veteran asserted that he has rheumatoid arthritis and inflammation of the joints of the low back, left arm, and "shoulder," "adjunct to" the alleged fractures. It appears that these claims were considered part of the claims of fractures to the respective parts of the body. A rating decision dated in February 1993 granted service connection for fracture of the right and left scapulas. The veteran was advised that this was considered a grant of the claims related to the shoulders. Therefore, these claims are no longer for appellate review. In March 1993, however, the veteran disagreed with the rating assigned for his disabilities of the shoulders, which claim has not been developed. Therefore, this matter is referred to the regional office for appropriate action to include a statement of the case on this issue. The regional office has developed for appellate review the issue of service connection for rheumatoid arthritis. However, statements from the veteran and evidence of record shows that the veteran may also be seeking service connection for arthritis other than rheumatoid. Thus, the regional office should take appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he sustained fractures of the low back and left arm in service. It appears from his August 1992 notice of disagreement that he alleges these fractures to have been sustained in combat. He further claims that he now has rheumatoid arthritis and inflammation of joints in the right leg, knee, ankle, and elbow, and the neck, "adjunct to" these fractures. 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 presented evidence of well-grounded claims for service connection. FINDINGS OF FACT 1. Fracture of the low back and left arm was not shown in service; no competent evidence has been presented which links probable elbow tendonitis or overuse syndrome, first shown many years after service, to service. 2. Rheumatoid arthritis with joint inflammation of the right leg, knee, ankle, and elbow, and of the neck, was not shown in service and is not currently shown. CONCLUSION OF LAW The veteran's claims for service connection for residuals of fracture of the low back and left arm, and rheumatoid arthritis with joint inflammation of the right leg, knee, ankle, and elbow, and the neck, are not well-grounded. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. § 3.303(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110. In any case where a veteran was engaged in combat with the enemy during a period of war, the Department of Veterans Affairs (VA) shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by said service such 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, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). The threshold question to be addressed is whether the veteran has presented well-grounded claims for service connection. If he has not presented any well-grounded claims, then his appeal must fail and there is no duty to assist him further in the development of his claims. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1992). Case law provides that although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992). One element of a well-grounded claim is a presently existing disorder stemming from the disease or injury alleged to have begun in or been aggravated by service. Brammer v. Derwinski, 3 Vet.App. 223 at 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). The United States Court of Veterans Appeals has held that the evidence required to meet the well-grounded standard can vary: The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under [38 U.S.C.A. §] 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, 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. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak, 2 Vet.App. at 611. If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). The reserve enlistment examination in February 1965 was negative for pertinent abnormality, as was the service enlistment examination in September 1965. Service treatment records show no relevant complaints or findings. The separation examination in September 1968 revealed no pertinent abnormality. At VA outpatient treatment in November 1976, the veteran gave a history of having a motorcycle accident the Sunday before and was found to have a fracture of the right L3 transverse process. No service-related history was noted. In July 1991, the veteran complained to VA doctors of feeling that something was pulled loose in his elbows, which feeling had been present in the right elbow for a long time, and in the left elbow for a few weeks. An X-ray of the left elbow in August 1991 was normal. The assessment was probable tendonitis or overuse syndrome. In May 1992, the veteran gave a history of combat trauma, said that he had pain in the neck, elbows, hips, and knees, and added that he currently worked as a mechanic. The assessment was probable degenerative joint disease (DJD) in the knees secondary to old trauma by history, with possible DJD in other joints as well, including the back and neck, and probable tendinitis of the elbows secondary to overuse due to occupation. In June 1992, the veteran complained of posterior neck pain with radiation to the right shoulder and arm to the elbow. He was said to report a "remote" neck injury. Cervical spine X-rays showed minimal DJD changes with small spurs at C5-7. VA outpatient treatment in August 1992 revealed a pertinent complaint of pain in the arms, thought by the doctor to be DJD. VA examination in September 1992 showed that bilateral forearm, right leg, and lateral cervical spine X-rays were negative for abnormality. The veteran's complaints prompted a diagnosis of possible minimal cervical muscle strain; however, no positive findings were made on examination, and the disposition was that the veteran needed no treatment. The veteran is currently service-connected for residuals of fracture of the left little finger, shell fragment wound to the left forearm, rated as scarring, shell fragment wound to the forehead, rated as scarring, right scapular fracture, and left scapular fracture. The Board will first address the claims relevant to fractures. While the veteran asserts that he had fractures of the low back and left arm in service, this is not reflected by the service medical records. Further, current residuals of any such fractures must be shown in order for the claims to be well grounded. Many years after separation, the veteran is thought to have left elbow tendonitis or overuse syndrome. This has not been medically attributed to service, but has been attributed to his occupation as a mechanic. As a lay person, the veteran is not competent to opine on the etiology of his left elbow disorder. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Medical evidence must be submitted to make well grounded a claim that a disorder first shown remote from service is related to a service injury. See Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Such medical evidence is not shown here. Since the medical evidence does not show that the veteran currently has fractures of the low back or left arm or residuals thereof, these claims are not well grounded. No duty to assist him in further developing these claims, or to address any related arguments, therefore, arises. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Since the claim is not well-grounded, it must be dismissed. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The Board now must determine whether the claim of service connection for rheumatoid arthritis with joint inflammation of the right leg, knee, ankle, and elbow, and the neck, is well grounded. The initial question is whether the veteran's has the disorder. Here, no medical evidence of the current existence of rheumatoid arthritis with joint inflammation of the right leg, knee, ankle, or elbow, or neck, has been presented. The veteran's testimony or statements are not sufficient to establish a diagnosis. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Because rheumatoid arthritis with joint inflammation is not currently shown, the claim is not well grounded. See Brammer v. Derwinski, 3 Vet.App. 223 at 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992); 38 C.F.R. § 3.303(a). No further duty to assist the veteran in developing these claims, or to address the combat-related or other arguments, exists. Since the claim is not well grounded, it must be dismissed. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). ORDER The claims for service connection for residuals of fracture of the low back and left arm, and for rheumatoid arthritis with joint inflammation of the right leg, knee, ankle, and elbow, and the neck, are dismissed. WILLIAM J. REDDY 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.