Citation Nr: 0000249 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 94-17 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for arthritis of the right foot, secondary to service-connected residuals of frostbite of the feet. 2. Entitlement to service connection for peripheral neuropathy of both feet, secondary to service-connected residuals of frostbite of the feet. 3. Entitlement to service connection for fibrositis, secondary to service-connected residuals of frostbite of the feet. 4. Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for disability manifested by difficulty swallowing, choking, chest pain, lung pain, and kidney disability as a result of VA whirlpool therapy in November and December 1989. 5. Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for nerve entrapment in the left foot, due to VA surgery in 1984. 6. Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for nerve injury to the right arm, due to VA treatment in 1990. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran has active military service from May 1955 to December 1957. This case was previously before the Board of Veterans' Appeals (Board) and remanded for additional development in December 1996. The case has been returned to the Board for further appellate consideration. Pursuant to the December 1996 remand, the veteran was provided examination of his feet in January 1999. Following such examination, by rating action in March 1999, service connection was granted for arthritis of the left foot, as a residual of frostbite, and rated 20 percent disabling while a separate 10 percent rating was accorded for residuals of frostbite of the right foot. Arthritis of the right foot remained denied. The issue of service connection for arthritis of both feet has been changed to reflect the March 1999 rating action. The veteran raised the issue of entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for nerve damage in the right arm, allegedly resulting from blood having been drawn at a VA facility on February 22, 1990. A rating action in September 1995 denied the § 1151 claim for the right arm, in addition to other determinations, and the veteran was so informed, including his appellate rights, the following month. In a statement dated in October 1995, the veteran's representative noted that the 1151 issues had been decided unfavorably, and the veteran again wished to include the 1151 issue in his BVA appeal, "as originally stated on Form 9 Mar. 4, 91." The Board notes that the March 1991 substantive appeal by the veteran included reference to the nerve injury to the right arm. A supplemental statement of the case (SSOC) that included right arm weakness due to VA treatment was sent to the veteran in March 1996. In November 1997, the RO informed the veteran that he should have been provided a separate statement of the case (SOC) and VA Form (VAF) 9 on the right arm issue alone; enclosed was a VAF 9, and the veteran was informed that he had 60 days to submit that form or his claim would be dropped. A VAF 9 on the right arm issue was received in December 1997. The RO in a rating action in April 1998 determined that the December 1997 VAF 9 was the veteran's NOD, and was not timely filed. He was informed that if he wished to reopen this claim new and material evidence was required. The Board finds that the October 1995 statement was an NOD to the September 1995 rating action denying right arm disability related to VA treatment, as reference was made to 1151 claims and the March 1991 substantive appeal that also included the right arm injury. As shown above, the right arm issue is before the Board. FINDINGS OF FACT 1. There is no competent medical evidence that the veteran has arthritis of the right foot. 2. The preponderance of the evidence is that the decades post-service peripheral neuropathy of the feet is causally related to the service-connected residuals of frostbite of both feet. 3. There is no competent medical evidence that the veteran has fibrositis, secondary to service-connected residuals of frostbite of the feet. 4. There is no competent medical evidence of a relationship between the veteran's whirl-pool therapy in 1989 and any current medical disability. 5. The preponderance of the competent medical evidence is that the veteran does not have nerve entrapment in the left foot. 6. There is no competent medical evidence that the veteran has nerve injury to the right arm, due to VA treatment in 1990. CONCLUSIONS OF LAW 1. The appellant's claim for service connection for arthritis of the right foot, secondary to service-connected residuals of frostbite of the feet is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998). 2. Peripheral neuropathy of the feet is causally or etiologically related to a service-connected disability. 38 U.S.C.A. § 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.310(a) (1999). 3. The appellant's claim for service connection for fibrositis, secondary to service-connected residuals of frostbite of the feet is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). 4. The veteran's claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for disability manifested by difficulty swallowing, choking, chest pain, lung pain, and kidney disability as a result of VA whirlpool therapy in November and December 1989, is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). 5. The criteria for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for nerve entrapment in the left foot, due to VA surgery in 1984, have not been met. 38 U.S.C.A. §§ 11515107(a) (West 1991 & Supp. 1996); 38 C.F.R. § 3.358 (1996). 6. The veteran's claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for nerve injury to the right arm, due to VA treatment in February 1990, is not well- grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There are 3 volumes of folders concerning the veteran's claims for benefits beginning in 1974. These volumes contain medical evidence, statements from the veteran, letters to and from Congressional representatives, and associated documents propagated by the RO related to these claims. These folders have been reviewed in their entirety in regard to the claims currently before the Board, and the pertinent evidence for each issue is set forth below. Service Connection Claims Arthritis of the Right Foot The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). 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 § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are 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." 38 U.S.C.A. § 5107(a); 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). The United States Court of Appeals for Veterans Claims (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis 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. Id. Factual Background VA medical records, including examinations, outpatient clinicals, and medical statements, from 1974 through 1987 are absent any reference to or finding of arthritis of the feet. B. P., DPM, in a statement dated November 4, 1988, noted treatment for the veteran at the podiatry clinic, and summarized that the veteran had frostbite, chronic in nature, and "mild degenerative arthritis." VA treatment for the veteran, beginning in 1990, included the rheumatology clinic. In hearing testimony in August 1991, the veteran reported that he had been checked for arthritis for years and there was no sign of arthritis, and then all of a sudden he developed arthritis in his feet and doctors told him it was due to frostbite, Transcript (T.) p. 3. Received in April 1997, were copies of medical records for the veteran, private and VA, from the 1970's into the 1980's, apparently associated with his claim for a Social Security Administration disability claim. A private x-ray study of the left foot, in August 1985 was interpreted as showing "a suggestion of very minimal lipping at the first MP joint and there was a slight deformity of the distal shaft of the fourth metatarsal suggestive of old healed fracture." Copies of VA clinic records for the veteran from 1988 to 1997 do not reveal any pertinent diagnostic studies showing arthritis of the right foot. VA x-ray studies of the feet in January 1998 revealed mild degenerative joint disease changes about the left foot; the bones and joints of the right foot were described as normal. Analysis In order for a claim for claim for service connection to be well grounded, the 3 elements are (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 [disease or injury] and the current disability. In this case there is no medical diagnosis of arthritis of the right foot. "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). In the absence of competent medical evidence of a current right foot arthritis his claim is not well grounded. The veteran himself is not shown to possess the medical expertise to determine the etiology of his various medical symptoms or their relationship to his service-connected disability, and his claims of medical disability are of no probative value. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In regard to his testimony that he was told by doctors that he had arthritis of the feet, such hearsay medical evidence does not constitute medical evidence necessary for a well-grounded claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Where the Board addresses in a decision a question that was not addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. In this case, the RO resolved this issue on the merits whereas the Board finds that the appellant did not meet his initial burden of submitting a well grounded claim. Since the appellant did not meet her initial burden, however, her claim is inherently implausible such that any error by the RO is harmless and he is not prejudiced. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Meyer v. Brown, 9 Vet. App. 425 (1996). Peripheral Neuropathy of Both Feet There a multiple diagnoses of peripheral neuropathy of the lower extremities for the veteran, to include some assessments that associated the neuropathy with the service- connected frostbite of the feet.. On the basis of the current case law, which requires that this evidence be presumed to be true for the limited purpose of establishing a well grounded claim, the veteran's claim for service connection for a peripheral neuropathy of the lower extremities, secondary to service-connected frostbite must be presumed to be plausible, and thus well grounded. King v. Brown, 5 Vet. App. 19 (1993); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board further finds that the RO has amply discharged the duty to assist under 38 U.S.C.A. § 5107(a). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (1999). Factual Background The record shows alcohol abuse for the veteran post-service, with the veteran reporting that he quit drinking in 1976. VA examination of the feet in October 1986 noted sensation decreased to pinprick and light touch, and bilateral paresthesia's. Vascular evaluation in November 1988 found no chronic PVD (peripheral vascular disease). A neurology evaluation was recommended, and performed later that same month. He was referred for tingling and numbness in the arms and legs. The veteran reported tingling and burning dysesthesia's in his feet, since the early 1970's. The pertinent impression was status post frost bite, possible mild peripheral neuropathy. A NVC (nerve conduction velocity) test was performed in December 1988 and the finding were consistent with a peripheral mild polyneuropathy. It was noted that the veteran refused an EMG (electromyography). The veteran was provided VA neurology evaluation in August 1990, in regard to his complaints of leg pain. Slowly progressing neuropathic pain involving the feet, ankles, and legs was reported. Dr. H.'s impression included painful peripheral neuropathy. Dr. H., in a statement dated November 26, 1990, reported that the veteran has a moderately severe painful peripheral neuropathy due to feet and leg pain and sensory changes. It was noted that the "exact cause of this disorder is in question." His frostbite injury was noted and it was commented that though "we cannot definitely attribute his current problems to this injury there is at least suggestive evidence for a cause and effect relationship." It was noted that the case had been discussed with other neurologists and a letter written to Mayo Clinic for advise, as there did not appear to be any hard evidence for late onset peripheral neuropathy following cold injury. It was also noted that the veteran did drink heavily at one time but had been abstinent for several years and if his neuropathy were from alcohol abuse, it should be getting better rather than worse. In file is a copy of a letter from P. D., M.D., Department of Neurology, Mayo Clinic, dated October 24, 1990, addressed to Dr. H.. It was noted that the question of painful neuropathy related to frost bite injury from years before was complex. Further noted was that painful neuropathies were quite common in the elderly and in other cases related to metabolic and toxic conditions. It was opined that it would be difficult to prove that cold injury caused the injury unless continuous neurologic involvement from the time of the injury could be documented. It was not Dr. P. D.'s impression that cold injury was an important cause of later neuropathy. In hearing testimony in August 1991, the veteran reported that he did not remember the first time he was told he had peripheral neuropathy, T. p. 4. VA outpatient clinic records from 1988 to 1997 note reference to current alcohol use in 1992. About 1994, the veteran's complaints centered on his back, neck, and shoulder pains. In June 1994, Dr. H. noted that the veteran had returned for follow-up on polyarthralgia and residual neuropathic pain secondary to frostbite. In an August 18, 1997 statement, following review of the medical records of the veteran regarding the etiology of painful peripheral neuropathy, Dr. H. noted the documented history of frostbite for the veteran, and research of material in the VA related to neuropathic sequelae of cold injury. In regard to the veteran's case, Dr. H. stated that the etiology of his painful peripheral neuropathy and multiple arthritic complaints "may never be fully delineated." It was noted that the veteran had a "history of toxic exposures from chronic tobacco use, alcohol, and industrial solvents related to his work as an auto body repair mechanic. All of these exposures could potentially contribute to neuropathy. The one historical fact which would service connect his complaints is the history of cold injury and references which relate conditions such as arthritis and neuropathy to the remote effects of cold injury." Analysis It has been medically established that the veteran has peripheral neuropathy involving his lower extremities. The question is whether this disorder is related to his service- connected frostbite of both feet. According to the medical evidence, the problem is complicated by the veteran's abuse of alcohol and his tobacco use, as well as his contact with toxic chemicals while doing body and fender work. The medical opinions in 1990 were equivocal in making any association between the cold injury in service, and the decades post-service peripheral neuropathy. Dr. H. in 1990 did note that with abstinence from alcohol, any alcohol related neuropathy should get better, not worse as appeared the case of the veteran; however, it appears from the record that the veteran was not completely abstain from alcohol as had been related by Dr. H.. Be that as it may, although couched somewhat equivocally, Dr. H. in 1997, after reading material concerning post-cold injury neuropathies, stated that the one fact that service connected the veteran's neuropathic complaints was his historical cold injury, and references which related conditions such as arthritis and neuropathy to remote effects of cold injury. The Board finds that Dr. H.'s opinion, based on review of recent medical data concerning residuals of remote cold injuries, carries sufficient probative weight to establish by a preponderance of the evidence that the veteran's current peripheral neuropathy of the feet is causally related to cold injury in service. Fibrositis, Secondary to Service-Connected frostbite of the Feet The conditions for a well-grounded claim have been set forth above. Factual Background A VA neurology evaluation was performed in December 1988, in regard to the veteran's complaints to include nonspecific pain in arms and legs, with no evidence of vascular disease. The veteran reported experiencing annoying muscle aches involving his legs, arms, shoulders, and back. He insisted that the pain was not in the joints but specifically in the muscles. The impression included "muscle soreness etiology unknown, doubt myositis, possibly he may be suffering from fibrositis." VA clinical records in 1988 and 1989 note possible fibrositis for the veteran. Records in 1990 note chronic pain syndrome, polyarthralgia, and "fibrositis." A neurology evaluation in August 1990 noted that the veteran was followed for "fibrositis" by Dr. G. in the pain clinic. The evaluation impression included history of "fibrositis." In hearing testimony in August 1991, the veteran reported that "Dr. Vike" told him he had fibrositis, and his current doctor, "Dr. Harpo (H.)", won't tell him what caused it because they don't know where fibrositis comes from, T. pp. 5 and 6. VA clinic records from 1988 to 1997, reflect complaints of hurting all over in 1992, and in 1993 he complained of diffuse joint pain and muscle soreness. In February 1994, he reported that once in service he fell unconscious and probably was exposed to cold weather and was "frost bitten" all over. He had pain all over since then. There were no specific finding of fibrositis in 1994, 1995, 1996, or 1997. When examined by the VA in January 1998, an opinion as to fibrositis was requested. It was noted that the veteran stated that he had "never been told that he has fibromyalgia or fibrositis." He did state that he has pains all over and that doctors, including Dr. H. told him he had arthritis. He also stated that about a month prior, after an MRI, he was told he had more than arthritis. He recounted the areas of joint and muscle pains. On physical examination, the veteran did not meet the requirements of the 18 tender point sites for a diagnosis of fibromyalgia or fibrositis. The pertinent diagnosis was the veteran did not meet the criteria for fibrositis or fibromyalgia. There was review of the claims file by the examiner. Analysis Service connection cannot be established for a disease or disability not medically demonstrated. The first element for a well-grounded claim is a medical diagnosis of a current disability. The medical evidence of record does not establish that the veteran has fibrositis. His claim is not well-grounded. McManaway v. West, No. 97-280 (U.S. Vet. App. Sept. 29, 19999). The veteran did testify that he was told by a treating physician that he had fibrositis. As pointed out above, such hearsay medical evidence does not constitute medical evidence necessary for a well-grounded claim. See Robinette. Additionally, in January 1998 he told the examiner that he had never been told he had fibrositis, but he had been told by doctors that he had arthritis. Where the Board addresses in a decision a question that was not addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. In this case, the RO resolved this issue on the merits whereas the Board finds that the appellant did not meet his initial burden of submitting a well grounded claim. Since the appellant did not meet her initial burden, however, her claim is inherently implausible such that any error by the RO is harmless and he is not prejudiced. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Meyer v. Brown, 9 Vet. App. 425 (1996). 38 U.S.C.A. § 1151 Claims In Gardner v. Derwinski, 1 Vet. App. 584 (1991), the United States Court of Appeals for Veterans Claims (previously known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") invalidated 38 C.F.R. § 3.358(c)(3), based on the fact the section of the regulation, which included an element of fault, did not properly implement 38 U.S.C.A. § 1151. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability or in death, disability compensation shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. The requirement for fault was eliminated. In December 1994, the United States Supreme Court (Supreme Court) affirmed the lower court's decision in Brown v. Gardner, ___U.S. ___, 115 S. Ct. 552 (1994). On March 16, 1995, new regulatory criteria were promulgated by the VA to conform to the Supreme Court's decision and to implement the holding in Gardner. 38 U.S.C.A. § 1151 was amended by Congress in 1996, the purpose of which was to change the requirements concerning negligence for recovery under § 1151. This change is effective October 1, 1997, and can be construed to affect only claims filed on or after that date. The claims now before the Board on appeal were initially filed before 1997, and the Board will proceed on the basis that the more restrictive legislative changes do not apply to these matters. Statutory/Regulatory Background A claim for benefits under 38 U.S.C.A. § 1151 is similar to a claim for service connection, with the principle distinction that the focus is upon VA care, not the claimant's period of service. Significantly, the principle of well-groundedness is applicable to these claims. Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter and dependency indemnity compensation under chapter 13 of this title shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991). Regulatory provisions pertinent to this claim include 38 C.F.R. § 3.800, determinations for disability or death from hospitalization, medical or surgical treatment, examinations or vocational rehabilitation training, which provides: (a) General. Where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. (Authority: 38 U.S.C. 1151). (b) Additional disability. In determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. (c) Cause. In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. (4) When the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, it will bar him (or her) from receipt of compensation hereunder except in the case of incompetent veterans. (5) Compensation for disability resulting from the pursuit of vocational rehabilitation is not payable unless there is established a direct (proximate) causal connection between the injury or aggravation of an existing injury and some essential activity or function which is within the scope of the vocational rehabilitation course, not necessarily limited to activities or functions specifically designated by the Department of Veterans Affairs in the individual case, since ordinarily it is not to be expected that each and every different function and act of a veteran pursuant to his or her course of training will be particularly specified in the outline of the course or training program. For example, a disability resulting from the use of an item of mechanical or other equipment is within the purview of the statute if training in its use is implicit within the prescribed program or course outlined or if its use is implicit in the performance of some task or operation the trainee must learn to perform, although such use may not be especially mentioned in the training program. In determining whether the element of direct or proximate causation is present, it remains necessary for a distinction to be made between an injury arising out of an act performed in pursuance of the course of training, that is, a required "learning activity", and one arising out of an activity which is incident to, related to, or coexistent with the pursuit of the program of training. For a case to fall within the statute there must have been sustained an injury which, but for the performance of a "learning activity" in the prescribed course of training, would not have been sustained. A meticulous examination into all the circumstances is required, including a consideration of the time and place of the incident producing the injury. (6) Nursing home care furnished under section 1720 of title 38, United States Code is not hospitalization within the meaning of this section. Such a nursing home is an independent contractor and, accordingly, its agents and employees are not to be deemed agents and employees of the Department of Veterans Affairs. If additional disability results from medical or surgical treatment or examination through negligence or other wrongful acts or omissions on the part of such a nursing home, its employees, or its agents, entitlement does not exist under this section unless there was an act or omission on the part of the Department of Veterans Affairs independently giving rise to such entitlement and such acts on the part of both proximately caused the additional disability. 38 C.F.R. § 3.358 (1996) Disability manifested by difficulty swallowing, choking, chest pain, lung pain, and kidney disability, as a result of VA whirlpool therapy in November and December 1989. Factual Background The October 27, 1989 medical certificate showing treatment of the veteran for his complaints of pain in the head, arms, shoulder and neck, noted plans to include physical therapy. The veteran was initially seen at the physical therapy clinic November 28, 1989 with chronic pain "all over." Heat was said to help decrease the aching pain. Following physical evaluation, the assessment was that the veteran was not grossly abnormal but did not demonstrate strength and coordination of a normal, healthy individual. It was planned to instruct the veteran in general range of motion (ROM) and stretching program for 2 visits, and request evaluation to rule out neurological disorder. The veteran was seen at rheumatology December 11, 1989, for evaluation of probable fibrositis and pain syndrome. He made no reference to problems other than his joint and muscle pain. The impression was polyarthralgia/chronic pain syndrome, history of frostbite. He was seen at RMS (rehabilitation medicine service) December 15, 1989, complaining of pain everywhere, with aches and weakness in all muscles. The impression was depression. He was not interested in psychiatry referral. A December 26, 1989 medical certificate noted that over the prior 7 to 10 days the veteran had generalized chest pain, associated with SOB (shortness of breath), and weakness, unrelated to activity. The pain was "dull" lasting only seconds but the weakness lasted an hour and a half. A January 3, 1990 physical therapy "final note" showed the initial visit was November 28, 1989, followed by a program that consisted of W/P (whirl-pool), followed by an exercise program. It was recorded that the veteran did not tolerate the treatment of W/P well and the treatment was changed to hot packs, no whirl pool or exercise, per a physician on the 15th of December 1989. The treatment was for 4 weeks. The 2nd of January 1990, the veteran called and stated that the treatment was not doing any good and he would not be coming back. He had a total of 3 treatments, the last on December 26, 1989. It was noted that he tolerated the treatment "fair." A medical certificate dated the 22nd of January 1990, noted that the veteran was complaining of his chest, back, pulling in the left side of the neck that pulled his head sideways "about a week ago." A choking sensation all of the time was noted. There was reference to a note in mid December 1989 that the veteran was not cooperative with any form of treatment. He claimed he was choking at the time of examination, which showed a normal throat. The assessment was "choking sensation" all of the time, unknown cause. When seen at the pain clinic January 23, 1990, it was recorded that the veteran was most painful in legs and upper body muscles, and had been very reluctant to comply with previous treatments out of fear and concern. He agreed to comply with the recommended treatment, and medication was prescribed. A VA outpatient clinic record, February 16, 1990, noted that the veteran stated that "they messed me up when they put me in the whirl pool." He claimed he was having problems with his neck, chest, and back hurting, hurting all over, and having a problem swallowing. It was noted that the difficulty with food sticking in the lower part of his throat started in December 1989 "since they put me in that whirl pool." The assessment was dysphagia, unknown cause, doubt significant pathology. A February 7, 1990 rheumatology clinic visit noted no new complaints. The veteran was taking medication and sleeping better. The examination and impression did not include any reference to symptoms from whirl-pool therapy. On February 15, 1990 the veteran was sent to physical therapy from the pain clinic in regard to muscle pain. There was no reference to any swallowing or choking problem. Reference was made to "spurs" on the cervical spine that caused headaches, and a constant burning in his head, chest, arms and back. Brief relief in warm water was reported. The assessment was chronic pain of apparently several origins for which a total body conditioning program may produce some relief. The veteran was skeptical at best about the benefits of physical therapy goals. A note from the 23rd of February was to the effect the veteran was discharged from the therapy program for non-attendance. Received February 20, 1990 was the veteran's claim for persistent residuals of difficulty swallowing, mild choking, chest pain, and lung pain, related to whirl-pool treatment for fibrositis on either November 27, 1989, or December 4, 1989. A November 1990 progress note showed impressions of COPD (chronic obstructive pulmonary disease), fibrositis and fibromyalgia syndrome, and chronic non-cardiac chest pain, possibly secondary to fibrositis and fibromyalgia. When seen at a neurology clinic in March 1991, the veteran reported right thigh pain, and stated that he had not had a normal erection since February or March 1990. In hearing testimony in August 1991, the veteran reported that he was put in the whirl-pool in 1989 for fibrositis and arthritis, and that after 10 or 12 minutes severe pressure built up in his chest and lungs and that he hollered to get out. Since then he had difficulty swallowing, choking and had pain in his lungs. When asked if he felt that the arthritis had spread due to the treatment, the veteran replied that it wasn't there before. He also noted that since the incident he still had chest pains, lung problems, kidney pain, and impotence, all developed gradually since the whirl-pool, T. pp. 7, 8, and 9. The Board notes that subsequent VA clinical records do not reflect continuation of complaints of difficulty swallowing, choking, chest pain, lung pain, and kidney difficulty related to whirl-pool therapy. Analysis For the limited purpose of determining whether a claim is well grounded, evidentiary assertions must be accepted as true, and service connection may be established through competent lay evidence, not medical records alone. Horowitz v. Brown, 5 Vet. App. 217 (1993). Here, the Board does not doubt the good faith recitation of symptoms by the veteran following his immersion in a whirl-pool, but a lay person is not capable of offering evidence requiring medical knowledge and lay persons are not competent to render testimony concerning medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). There is no competent medical evidence that the veteran has any disability related to the whirl-pool therapy in 1989. Medical evaluations after the whirl-pool incident did not result in a diagnosis of additional disability related to the W/P therapy. In fact there is no current medical diagnosis for the veteran of additional disability manifested by difficulty swallowing, choking, chest pain, lung pain, and kidney disability as a result of VA whirlpool therapy or otherwise. Even the impression of dysphagia in February 1990, following the veteran's recitation of problems following whirl-pool therapy, did not result in nexus to that incident, and it's significance was doubted. It would appear from the record that whatever symptoms the veteran may have experienced immediately after the whirl-pool therapy, there are no current medically ascertainable residuals. His belief alone is insufficient to establish a well-grounded claim. Where the Board addresses in a decision a question that was not addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. In this case, the RO resolved this issue on the merits whereas the Board finds that the appellant did not meet his initial burden of submitting a well grounded claim. Since the appellant did not meet her initial burden, however, her claim is inherently implausible such that any error by the RO is harmless and he is not prejudiced. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Meyer v. Brown, 9 Vet. App. 425 (1996). Nerve entrapment in the left foot, due to VA surgery in 1984. There is a private assessment of "probable" nerve entrapment in the left foot, which the physician thought was due to prior VA surgery. On the basis of the current case law, which requires that this evidence be presumed to be true for the limited purpose of establishing a well grounded claim, the veteran's claim for service connection for nerve entrapment in the left foot, due to VA surgery in 1984 must be presumed to be plausible, and thus well grounded. King v. Brown, 5 Vet. App. 19 (1993); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board further finds that the RO has amply discharged the duty to assist under 38 U.S.C.A. § 5107(a). The statutory and regulatory background for § 1151 claims has been set forth above. Where it is determined that that there is additional disability resulting for a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. 38 C.F.R. § 3.358 (1996). Factual Background On April 10, 1984, the veteran was scheduled for surgery excision of a fibrous and calcified mass, left foot. The surgery was canceled when the local anesthesia was ineffective. He was rescheduled, with general anesthesia, later that same month. A hospital summary for the period April 22-25, 1984 shows uneventful surgery and post-operative period for a soft tumor growth on the left foot. An April 25, 1984 physical therapy record noted excision of a mass on the left foot on the 23rd. The veteran was fitted with crutches and instructed in their use. He was seen at the podiatry clinic April 30, 1984, post-operative day 7, and inspection of the foot revealed slight swelling and slight erythema. The foot looked extremely well for the procedure performed. Pathology revealed an inclusion cyst. The assessment was "progressing satisfactorily." A May 7, 1984 clinic record noted that the veteran stated that he was "feeling fine." He was again noted to be "progressing satisfactorily." Return visits the 14th, 17th, and 24th of May, found the veteran feeling fine, and stating that his foot was fine. Progress was satisfactory. The veteran was still feeling fine in June1984, and it was recorded on the 21st of June that the incision had opened up due to the veteran twisting his foot in a fall. There was no drainage, inflammation or infection. Podiatry clinic visits in July 1984 also reported that the veteran stated that his foot was fine, and getting better. The veteran continued to proclaim that his foot was doing well/fine/better in podiatry clinic visits in August, September, October, and November 1984. A podiatry clinic record dated in January 1985 showed examination of the veteran's foot and that it had healed satisfactorily. Due to the size of the cyst, the plantar aspect had undergone certain plantar changes. The veteran was cleared to return to work. In March 1985, it was noted that the veteran stated that "my foot is feeling fine." There were no abnormal findings. In May 1985 he was casted for orthotics. VA podiatry examination in November 1986 showed that the veteran's chief complaint was aching an burning of both feet. There was reference to the April 1984 surgery, and it was noted that pathology reported an epidermal inclusion cyst with foreign body granuloma and focal dystrophic calcification. Other than the scar, there were no finding referable to the left foot surgery. Examination of the feet in December 1986 was also without complaints or findings referable to the foot surgery in 1984. B. Sp., M. D., in a progress note dated in February 1986, reported that the veteran complained of tingling, weather sensitivity, itching and aching of the left foot. The veteran reported not working since evaluation in August 1985 when there was a diagnosis of metatarsalgia in the left foot. Reference was made to the surgery in April 1984, and associated slides are in file. The impression was subjective symptoms but an essentially normal examination of the foot. Dr. Sp. reported that the veteran also had a diagnosis of metatarsalgia along the left foot and this appears to be secondary to the previous surgery procedure. The veteran's mother, in a letter dated in January 1987, reported that at age 5 years, the veteran sustained a cut on his left foot from a saw. Dr. Sp., in a progress note dated in May 1988, found some tenderness along the lateral aspect of the 3rd metatarsal head and stated that "very localized pressure will reproduce some sharp pain." The impression was that the veteran "has probably an entrapment of one of his plantar sensory nerves in the scar in which he gets repeated pressure with weight bearing." It was thought that this related back to the surgery in 1984. B. Pr., DPM, MPH, in a statement in November 1988, noted examinations of the veteran's feet in 1986 and 1988, to include vascular consult. It was summarized that the veteran had chronic frostbite, mild degenerative arthritis, and a vascularity which appears to be normal. There was no reference to nerve entrapment. The Board, in decisions in April 1988, and January 1990, denied service connection for residuals of a cyst of the left foot. In February 1990, the veteran filed a claim to include entrapment of a plantar sensory nerve condition, as the direct result of excision of the soft tumor in 1984. Podiatry evaluation in June 1990 was without finding of nerve entrapment in the left foot. The veteran was provided neurology evaluation in August 1990, and it was reported that he had hyperpathia in the third toe of the left foot, and dysthesia in the feet. Physical examination found hyperpathia of the feet on stroking the bottom of the foot, with the third toe of the left foot being more sensitive. The diagnosis was painful peripheral neuropathy. Dr. Pr., in a progress note dated in April 1991, noted that an examination in October 1986 resulted in a diagnosis of chronic frost bite of both feet. There was no reference to nerve entrapment in the left foot. In hearing testimony in August 1991, the veteran recounted the surgery in 1984, and reported "he told me he cut the nerve." He also reported that with the cut nerve, he had lost feeling in fourth toe, next to the little toe, T. pp. 10, and 13. VA outpatient clinic records for the 1990's do not reflect any diagnosis of nerve entrapment in the left foot. As noted above, the veteran was diagnosed with painful peripheral neuropathy in the feet. VA examination of the veteran's feet in January 1998, noted that the veteran reported that standing on his feet all day was painful, and he had to limit his activities due to that. The examiner's impression was metatarsalgia, essentially related to fat-pad thinning, possibly related to "freezing." Additional evaluation also in January 1998, for fibrositis, did not result in any diagnosis of nerve entrapment in the left foot. The examiner, in November 1998, when asked to specifically comment on nerve entrapment in the left foot, noted the mass that was removed in 1984, and made no diagnosis of current nerve entrapment. Analysis The only positive evidence in support of the veteran's claim for nerve entrapment in the left foot is the statement by Dr. Sp. in May 1988. It is noteworthy that only 2 years prior, Dr. Sp. had diagnosed metatarsalgia for the left foot; however, in 1988, after finding some tenderness along the lateral aspect of the 3rd metatarsal head and sharp pain with very localized pressure, he opined that the veteran "probably" had entrapment of one of his plantar sensory nerves in the surgical scar with weight bearing, and that it was related to the surgery in 1984. Note that Dr. Sp. was not specific about the nerve involvement, only that it was "one" of his plantar sensory nerves. He did no EMG or NCV testing, and based his opinion solely on the veteran's subjective complaints. The negative evidence against the veteran's claim of left foot nerve entrapment is that no other examiner of the veteran's feet has ever diagnosed nerve entrapment related to left foot surgery in 1984. B. Pr., a doctor of podiatry medicine, in a statement in November 1988, noted examinations of the veteran's feet in 1986 and 1988 and made no reference to nerve entrapment involving the left foot. Podiatry and neurology evaluations in 1990 found no nerve entrapment in the left foot, and the neurology diagnosis was painful peripheral neuropathy of both feet. It is noteworthy, that in hearing testimony in August 1991 the veteran reported that as a result of the cut nerve, he had lost feeling in fourth toe. In other words, according to the veteran, from 1988 to 1991, he went from pain in the 3rd metatarsal due to nerve entrapment due to surgery, to loss of feeling in the fourth toe due to the 1984 surgery. VA clinic records of treatment for the veteran from 1988 to 1997 do not reflect any diagnosis of nerve entrapment in the left foot. Even VA examinations of the veteran's feet in 1998 did not result in any finding or diagnosis of nerve entrapment in the left foot. On an overview, the Board finds that the single opinion of nerve entrapment in 1988 is over shadowed by the dearth of any further reference to nerve entrapment in the left foot after repeated examinations and evaluations of the veteran's feet over the next 10 years. The Board, in this instance places the greater probative value on the absence of any corroborating evidence to support the single diagnosis of nerve entrapment in 1988, made without diagnostic testing or other supportive investigation and rationale. There is no current medical diagnosis of disability. Accordingly, the benefit sought must be denied. As a whole the credible and probative evidence overwhelmingly preponderates against finding that the veteran has nerve entrapment in the left foot related to VA medical treatment. Therefore, the benefit of the doubt doctrine does not apply. Nerve injury to the right arm, due to VA treatment in February 1990. Factual Background On January 22, 1990, the veteran was seen for complaints of chest, back and neck pains. Pertinent laboratory studies and tests were suggested, and while the veteran agreed to get ABG's, (arterial blood gases) and chest X-ray, he "couldn't cooperate" with the ABG's as "she hit a nerve," and "I had a fit." The chest x-ray was completed, the veteran did not want pain medications, and he left before the report. When seen at the rheumatology clinic February 2, 1990, the veteran reported that he had no new complaints. There was no reference to any right arm nerve problem on February 2nd, on the 15th upon physical therapy evaluation, or on the 16th at an outpatient clinic. VA neurology evaluation in August 1990 was without reference to any right arm nerve problem or dysfunction. In August 1991, the veteran stated that he had right arm disability due to improper treatment February 22, 1990, when a nurse injured his right arm by damaging a nerve while trying to draw blood. An April 29, 1990 medical certificate noted that complaints of feeling of shock like electricity running in the right arm. He reported losing strength in both hands. On May 4, 1990, he reported right arm pain which "comes and goes." He was seen the 9th at a rheumatology clinic and reported still having "shocking sensation" in right antecubital area radiating up and down the arm. He was also still having generalized aches and pains. There was no specific finding for the right arm. When seen at the clinic in July his complaints included his hands, hips and shoulders, but not the right arm. A clinic record in August 1990 noted complaints related to medication, and the observation that the veteran had "a very distorted concept of his condition." VA neurology evaluation in August 1990 was without abnormal neurological findings for the right arm. VA clinical records for the veteran from 1988 to 1997 do not reflect any reference to or findings of right arm neuropathy related to nerve injury, from 1991 to 1997. The VA examination and evaluation in January 1998 noted complaints of muscle pain in both arms, and thighs, and pain in the joints of both elbows, hands and wrists. There were no findings of right arm nerve damage. Analysis Once again the Board points out that mere allegations of disability, no matter how sincere the belief, do not establish a well-grounded claim. The veteran has not submitted any medical evidence showing that he has right arm nerve disability related to VA treatment in 1990, and the veteran himself is not shown to possess the medical expertise to determine the etiology of his various medical symptoms or their relationship to any particular incident, and his claims of medical causation are of limited probative value. See Espiritu. The fact of this matter is that there is no medical diagnosis of nerve damage in the right arm. Review of the clinical records from January 22, 1990, to May 1990, shows only complaints related to the right arm, with no diagnosis of nerve injury. The first element of a well grounded claim is absent and the veteran's claim fails. Where the Board addresses in a decision a question that was not addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. In this case, the RO resolved this issue on the merits whereas the Board finds that the appellant did not meet his initial burden of submitting a well grounded claim. Since the appellant did not meet his initial burden, however, his claim is inherently implausible such that any error by the RO is harmless and he is not prejudiced. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Meyer v. Brown, 9 Vet. App. 425 (1996). ORDER Service connection for peripheral neuropathy of the feet is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for arthritis of the right foot is denied. Service connection for fibrositis, secondary to service- connected residuals of frostbite of the feet is denied. Service connection for disability manifested by difficulty swallowing, choking, chest pain, lung pain, and kidney disability as a result of VA whirlpool therapy in November and December 1989, is denied. Service connection for nerve entrapment in the left foot as a result of VA surgery in 1984 is denied. Service connection for nerve injury to the right arm, due to VA treatment in 1990, is denied. Michael A. Pappas Acting Member, Board of Veterans' Appeals