Citation NR: 9740035 Decision Date: 12/02/97 Archive Date: 12/12/97 DOCKET NO. 96-03 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S.M. Peace, Associate Counsel INTRODUCTION The veteran had active military service from November 1990 to November 1994. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 1995 rating decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for left and right knee disorders and a back disability. The veteran provided testimony before a hearing officer at the RO in December 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that service connection for the disabilities on appeal are in order. Specifically, the veteran alleges that he sustained his back and knee injuries while participating in parachute jumps in active duty. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims for service connection for left and right knee disorders and a back disability are well grounded. FINDING OF FACT No competent (medical) evidence has been submitted demonstrating the presence of a current left or right knee disability or a back disability. CONCLUSION OF LAW The claims for service connection for left and right knee disorders and a back disorder are not well grounded. 38 U.S.C.A. §§ 1131, 5107, 7104 (West 1991 & Supp. 1997); 38 C.F.R. § 3.303(b) (1996). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran, in this matter, claims that he has left and right knee disorders and back injury resulting from parachute jumps made in service. Service medical records show that the veteran underwent an entrance examination in October 1990. No physical defects or abnormalities were detected. He was found qualified for enlistment into the United States Army. Service Department records show that the veteran performed 32 parachute jumps and was awarded a parachute badge during his military career. Service medical records show complaints of left knee pain, and right knee and ankle pain, were made in October 1991, September 1992, and June 1993. Assessments of patellofemoral pain syndrome and inflammation were recorded. In June 1994, the veteran was seen for complaints of back pain from an injury to the left lumbar area. An x-ray examination revealed normal findings. He was placed on bed rest, but he still had some intermittent pain and soreness, as recorded in a July 1994 report. The sick call records contain assessments of low back strain, and musculoskeletal strain R/O. The veteran was discharged from the military in November 1994. A separation examination report, if any, is not included in the evidence of record. In January 1995, the veteran submitted an application for compensation and disability benefits, along with Form DA 1307, Individual Jump Record, in support of his claim for service connection for bilateral knee and back disorders sustained in service. A VA examination was conducted in April 1995. Primarily, the veteran complained of bilateral knee pain at the patellar- tibial insertion and the front portion of his legs when he sat for long periods. He indicated that activity generally did not bother his knees. The veteran related that he had left low back pain as a result of pulling a muscle in a parachuting injury in service. He complained that he was unable to lift heavy objects on his left side. Otherwise, his back was without pain. The objective findings of the general medical examination revealed that the veteran had a skin disorder. Otherwise, it was a normal examination. The orthopedic examination report noted that an x-ray examination of the knees and back was scheduled, but the veteran refused to take the x-rays. On physical examination, both knees were equivalent. There was no swelling, warmth, tenderness, crepitance, or effusion noted. Both knees were stable without joint line tenderness. The patellar-tibial insertion was not tender. There was 125 degrees of flexion and 0 degrees of extension, bilaterally. As for the back, there was no vertebral body, disc space, sacroiliac joint, paravertebral muscle tenderness or spasm. He had negative straight leg raising. Patellar and Achilles deep tendon reflexes were symmetric. He was able to flex his back to 90 degrees, and extend to 45 degrees. There was left and right side bending to 20 degrees and bilateral rotation to 30 degrees. It was the examiner’s impression that the veteran’s back and knees were normal. In the December 1995 hearing, the veteran testified that he injured his back six month prior to his discharge while preparing for a parachute jump. Essentially, he indicated that he pulled the muscles on the left side of his lower back as he was boarding the aircraft with his heavy gear and equipment. It was the veteran’s testimony that he did not perform the jump due to the back pain. He was taken to Womack Army Hospital where he received two injections in the hip. Muscle relaxer and pain medication were prescribed. The veteran claimed that his back never recovered after the injury, and that he was unable to work in labor-intensive positions, such as roofing, because he was unable to lift heavy objects. The veteran testified that he injured his knees as a result of parachute jumping. Also, he testified that he was receiving physical therapy for a right knee injury from a non-service related automobile accident. Finally, the veteran mentioned that he did not undergo a physical examination at separation. It was his testimony that he was told that physical examinations were only being given to Gulf War servicemen. II. Legal Analysis A claimant seeking benefits under a law administered by the Secretary of the Department of Veterans Affairs (VA) shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist the claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the claimant has presented a well grounded claim; that is, a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him in the further development of his claim, as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). As explained below, the Board finds that the veteran’s claim is not well grounded. To sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (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, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence) and of a nexus between the service injury or disease and the current disability (medical evidence). The nexus requirement may be a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection can be awarded for a disease or disability incurred or aggravated, or presumed to have been incurred in the line of duty while serving in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1996). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1996). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1996). In the veteran’s case, the Board finds that he has not submitted well-grounded claims of service connection for left and right knee disabilities. His service medical records clearly indicate that he was seen for left and right knee pain in service, and patellofemoral pain syndrome was assessed. However, in the post service VA examination, no disability specific to the knees was diagnosed. The examiner reported that there was no evidence of an orthopedic disability. As for the back disability, service medical records show that the veteran was seen for back pain in service. Thereafter, he was examined by VA since service, and no chronic back disability was shown. The veteran maintains that he experiences pain and pulling when lifting heavy objects as a result of his inservice back injury. While an individual may be able to provide accurate statements regarding firsthand knowledge of events or observations, a lay person may not offer evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran has submitted no evidence demonstrating that there is an underlying back disability which accounts for such pain. Moreover, no diagnosis has been established, and no treatment has been necessary for a back disorder. The accredited representative has argued that the VA examination is inadequate because an x-ray examination was not performed. It is noted in the examination report that the veteran refused to undergo an x-ray of his back and knees. VA cannot force him to do so. The Court has specifically disallowed service connection where there is no present disability: “[c]ongress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim [for service connection].” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board therefore finds that the record contains no competent evidence of left and right knee disabilities or a chronic back disability. In the absence of a well-grounded claim, the veteran’s appeal must be denied. There is no prejudice to the appellant in denying the claim as not well grounded even though the RO decision was on the merits, because the “quality of evidence he would need to well ground his claim or to reopen it would seem to be...nearly the same...” Edenfield v. Brown, 8 Vet. App. 384 (1995)(en banc). Compare Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the veteran has been advised by the RO, in the statement of the case, and by the Board in this decision, of the evidence necessary to make his claim well- grounded. The appellant may file a claim supported by competent (medical) evidence showing that he currently has chronic knee and back disabilities, and relating these to service. ORDER The claims for service connection for left and right knee disorders and a back disability are denied as not well grounded. J. E. Day Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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. - 2 -