Citation Nr: 0011277 Decision Date: 04/28/00 Archive Date: 05/04/00 DOCKET NO. 97-03 822 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from August 1980 to June 1981, and from October 1981 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision by the RO that denied claims of entitlement to service connection for left knee disability, low back disability, and right hip disability. FINDINGS OF FACT 1. No competent medical evidence has been presented to show that a left knee disability is attributable to military service, or that any pre-existing left knee disability increased in severity during service. 2. No competent medical evidence has been presented to show that the veteran currently has a low back or right hip disability. CONCLUSION OF LAW The claim of service connection for left knee, low back, or right hip disability is not well grounded. 38 U.S.C.A. §§ 1111, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). 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 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. Every appellant is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The veteran claims that, despite having had left knee surgery prior to his first period of active duty, his current left knee disability had its onset during service. He maintains that he has consistently suffered from left knee symptoms since his separation from service. He further claims that his left knee disability has caused his current chronic low back and right hip pain. For the reasons that follow, the Board finds that the veteran's claim of service connection for left knee disability, low back disability, or right hip disability is not well grounded. Initially, the Board notes that a majority of the veteran's service medical records are not available. The Court has held that where "service medical records are presumed destroyed . . . the BVA's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA also has a heightened duty to assist the veteran in the development of evidence favorable to his claim. The Board notes that the RO attempted repeatedly to obtain the veteran's service medical records from his second period of active duty. The record reflects that the RO requested the veteran's service medical records from the National Personnel Records Center (NPRC) and received negative responses in May 1995, July 1995, and January 1996. Subsequently, postcards from the NPRC were received in June 1996, February 1997, and May 1997 indicating that the RO's request was being submitted to the Commander, U.S. Army Reserve Personnel Center (ARPC). A response from the ARPC in July 1997 indicated that the veteran was assigned to a National Guard unit, and that the attached request for his service medical records should be forwarded to the unit. By a letter in May 1998, the RO requested that the veteran provide the address of his last National Guard Unit in order for the RO to obtain his service medical records. The veteran, however, did not respond. Despite the lack of service medical records for the second period of service, the Board notes that the absence of service medical records does not lower the legal standard for submitting a well-grounded claim. Rather, it heightens the Board's duty to address the evidence, and consider the benefit-of-the-doubt rule, if applicable. Available service medical records include a May 1980 VA clinical record indicating that the veteran sustained a left knee football injury and had had a medial meniscectomy in 1977. Examination revealed a well-healed medial arthrotomy scar. A May 1980 pre-enlistment examination report noted the veteran's cartilage removal from the left knee. An August 1980 enlistment examination report noted the veteran's medial left knee, 13-centimeter surgical scar. The remaining records, however, are negative for any complaint of, treatment for, or diagnoses suggesting any left knee disability. Post-service correspondence and private treatment records, dated from January 1991 to January 1992, show that the veteran received treatment for his left knee. In January 1991, synovitis of the left knee was diagnosed. In December 1991, the veteran's history of having sustained a spraining injury to the left knee at age 14 was noted. When he was 18, he had surgery on the left knee for a torn meniscus, and, in 1983, he had an arthroscopy, which was described as a "clean-up procedure." It was further noted that, following the arthroscopy in the Army, the veteran did well as far as his knee was concerned for about three years. In January 1992, he underwent left knee arthroscopic surgery. In the veteran's case, it is evident that he had had left knee surgery prior to his documented active military service, as reflected in records dated prior to active duty. A prior history of left knee surgery was also noted on the veteran's May 1980 pre-enlistment and August 1980 enlistment examination reports. With the exception of the pre- enlistment and enlistment examination reports, available service medical records are negative for complaints of, treatment for, or diagnoses suggesting left knee disability. In other words, there is nothing in these records reflecting a worsening of any pre-existing left knee disability. Moreover, despite the veteran's contentions to the contrary, the evidence of record does not contain any medical opinion indicating that a pre-existing left knee disability underwent a worsening during any period of service, or that the onset of any current left knee disability can be attributed to military service. The Board has considered the veteran's written statements regarding the etiology of his left knee disability. Although the veteran is competent to provide information regarding the symptoms he currently experiences, and those he has experienced since military service, there is no indication that he is competent to render an opinion on the etiology or progression of current disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494- 95. Consequently, absent the presentation of competent medical evidence showing that the veteran has a left knee disability that began in service or that pre-existed service and underwent a worsening therein, the veteran's claim may not be considered well grounded and must be denied. Turning to the issues of entitlement to service connection for a low back disability and a right hip disability, the Board also finds that these claims are not well grounded. As noted above, the veteran must present medical evidence of a current disability. Even assuming that the veteran experienced pain in service and continues to have such difficulty, no competent medical evidence has been presented to show that he currently has a low back or right hip disability. His available service medical records are negative for any reference to a back or hip problem. Post-service private treatment records, dated from January 1991 to January 1992, likewise do not indicate that the veteran has a back or hip problem. Consequently, despite the veteran's allegations that he has low back and right hip pain due to his left knee problems, no competent medical evidence has been presented to show that he currently has a low back or right hip disability. The Board also notes that pain is not considered a current disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.) The Board has considered the veteran's written statements regarding his problems with his low back and right hip, but no current diagnosis of any such disability has been provided by one competent to do so. In short, while the veteran is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, he has not been shown competent to provide a medical diagnosis regarding current low back or right hip disability. Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 92-93; Espiritu, 2 Vet. App. at 494-95. The Board finds that the low back and right hip claims are not well grounded. The Board also notes that it has been contended on the appellant's behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit, supra, in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his claim. Morton v. West, 12 Vet. App. 477 (1999). In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears merely to reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. The Board notes that the RO attempted to obtain the veteran's address of his last National Guard unit in order to obtain the remaining service medical records. However, without the cooperation of the veteran, the RO has developed the veteran's claim as fully as is possible. As there is no indication in the present case that the appellant's application is otherwise incomplete, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for a left knee disability is denied. Service connection for a low back disability is denied. Service connection for a right hip disability is denied. MARK F. HALSEY Member, Board of Veterans' Appeals