Citation Nr: 9825556 Decision Date: 08/26/98 Archive Date: 07/27/01 DOCKET NO. 96-46 587 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for degenerative joint disease of the right shoulder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Mark E. Goodson INTRODUCTION The veteran served on active duty from December 1945 to October 1947, and from May 1948 to January 1952. The matter currently on appeal comes to the Board of Veterans' Appeals (Board) on appeal from an August 1996 decision by the RO that denied service connection for degenerative joint disease of the right shoulder. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the veteran has degenerative joint disease of his right shoulder as a residual of an in-service lung surgery. They also contend, in the alternative, that the degenerative joint disease is secondary to the residuals of that surgery, for which the veteran is already service-connected. The representative further contends, pursuant to Allen v. Brown, 7 Vet. App. 439 (1995), that service-connected residuals of the surgery aggravate the degenerative joint disease of the veteran's right shoulder. The representative requests application of the benefit-of-the-doubt doctrine, and contends that, if the Board finds the claim not well grounded, then it should determine whether the RO complied with certain development procedures provided by M21-1. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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's claim is not well grounded. FINDING OF FACT No competent medical evidence has been submitted to show any relationship between the veteran's right shoulder disorder and his period of military service or already service- connected disability. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for degenerative joint disease of his right shoulder is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (1997). REASONS AND BASES FOR FINDING 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, 1468-69 (Fed. Cir. 1997). 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 on the merits. 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) (West 1991). 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. In order to establish a well-grounded claim of entitlement to service connection, the claimant must produce (1) medical evidence of a current disability; (2) lay or medical evidence that a disease or injury was incurred in or aggravated by service; and (3) medical evidence of a link, or nexus, between the current disability and the in-service disease or injury. Epps, supra. This third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (Table); see 38 C.F.R. §§ 3.307, 3.309 (1998). The requirement of a medical nexus also applies where a veteran claims, pursuant to 38 C.F.R. § 3.310, that a disability is proximately due to, or the result of a previously service- connected disability. Libertine v. Brown, 9 Vet. App. 521 (1996). In the present case, the Board finds that the veteran's claim of entitlement to service connection for degenerative joint disease of the right shoulder is not well grounded. His service medical records for his first period of service show that, at a December 1945 entrance examination, the veteran was examined and found physically qualified for enlistment. No physical defects were noted. The treatment records for his first period of service contain no complaint, treatment, or diagnosis of either a shoulder injury or degenerative joint disease. An October 1947 separation examination report reflects that his spine and extremities, including bones and joints, were normal on examination. Reflexes, including deep reflexes at the elbow, were normal. The examiner's summary reflects no physical defects. Service medical records for the veteran's second period of service include an April 1948 entrance examination, which contains findings identical to the December 1945 entrance examination. The treatment records for his second period of service contain no complaint, treatment, or diagnosis of either a shoulder injury or degenerative joint disease. However, in March 1950, he reported for treatment, complaining of elevated temperature, cough, generalized malaise, and aching. The diagnosis was influenza. His symptomatology continued, and by late March 1950, the diagnosis was changed to primary atypical pneumonia. In August 1950, bronchoscopy revealed purulent exudate, and the diagnosis was changed to bronchiectasis. From August 1950 to February 1951, at various times, the veteran manifested symptoms of bilateral bronchiectasis. In February 1951, the veteran underwent a partial lobectomy of the lower lobe of his right lung. He was placed in the left lateral decubitus position. The sixth rib was resected subperiosteally. The chest was entered by an incision in the rib bed. At the end of the surgery, the chest was closed in anatomical layers. Five days later, his hospital course was considered excellent, but by April 1951, a trocar thoracotomy was needed to aspirate a small pneumothorax at the base of his right lung. Later in April 1951, he underwent another trocar thoracotomy of his right lung at the sixth right intercostal space in the mid-axillary line; two additional trocar thoracotomies, for which precise sites are not described; and a thoracentesis at the sixth rib interspace in the posterio-axillary line were performed. In May 1951, he underwent exploratory thoracentesis at the seventh right intercostal space, in the posterio-axillary line, and a trocar thoracotomy. Later in May 1951, a catheter was inserted in his right eighth interspace posteriorly. In June 1951, the veteran underwent a partial lobectomy of the lower lobe of his left lung. He was placed in the right lateral decubitus position. A routine posterolateral incision was made. The sixth rib was resected and the chest entered through the rib bed. At the end of the surgery, the chest was closed in anatomical layers. The veteran withstood the procedure well. Later in June 1951, the veteran underwent another lobectomy of his left lung. There was a standard incision, with resection of the sixth rib. The wound was closed in layers. By July 1951, he was asymptomatic, and an August 1951 physical examination of his extremities was negative. In November 1951, a Physical Evaluation Board found the veteran to be unfit for duty by reason of bronchiectasis. A January 1952 separation examination report reflects that the veteran's spine and extremities, including bones and joints, were normal on examination. The report reflects that he was terminated from service by reason of physical disability, as reflected in his health record. The medical evidence of record does not reflect that the veteran had any treatment or diagnosis of degenerative joint disease of the right shoulder until the mid-1990's. There is no private medical evidence that addresses his right shoulder. The only VA medical evidence on point includes a May 1957 VA examination report, which reflects a finding of scars around the scapulae, but no complaint, treatment, or diagnosis of degenerative joint disease or other disability pertaining to the shoulder. An April 1975 VA examination report reflects his complaint of pain in his shoulder, and findings of well-healed scars around the scapulae, but there was no treatment or diagnosis pertaining to the shoulders or degenerative joint disease. An April 1995 VA outpatient treatment record reflects his complaint of pain in his right shoulder and arm, and muscle loss in his right arm. His history of a lobectomy was noted. The pertinent diagnoses were a frozen right shoulder secondary to muscle atrophy; and chronic lung disease, without bronchiectasis, stable. A VA x-ray report dated later in April 1995 reflects degenerative changes present in the right shoulder, with some sclerosis of the glenoid process and the articular surface of the humerus. There was a large osteophyte extending from the inferior aspect of the head of the humerus into the axilla. There was evidence of calcification in the articular cartilage, and degenerative changes in the acromioclavicular joint. The radiologist noted that the veteran was status post right thoracotomy with resection of the sixth rib. The radiologic impression was degenerative changes in the shoulder, most likely secondary to calcium pyrophosphate deposition disease. An undated VA outpatient treatment record, apparently prepared in August 1995, reflects that the veteran presented for treatment, complaining of right shoulder pain and stiffness. The veteran reported that he had lung surgery and that "they took my shoulder out." X-rays were noted to reveal degenerative changes at the glenohumeral joint, with a large osteophyte. The assessment was degenerative joint disease at the right glenohumeral joint. A January 1996 VA treatment record reflects the veteran's follow-up treatment, but no additional diagnosis or etiological comment was made. None of the medical evidence tends to show that degenerative joint disease of the veteran's right shoulder is related to military service. Moreover, there is no medical evidence that he had degenerative joint disease manifested within one year of either of his periods of military service, or that his claimed disabilities are due to or made worse by service- connected bronchiectasis, or service-connected residuals of a lobectomy. 38 C.F.R. §§ 3.307, 3.309, 3.310 (1998); Allen v. Brown, 7 Vet. App. 439 (1995). The statements by the veteran and his wife are not entitled to any probative value with respect to etiology because they are not shown to be competent to render a medical opinion on such a question. Black v. Brown, 10 Vet. App. 279, 284 (1997). Thus, his service connection claim is not well grounded. The representative contends that the veteran is entitled to the benefit of the doubt with respect to his claim. However, the benefit-of-the-doubt doctrine only applies if VA adjudicators reach the merits of the claim. As the veteran has not presented a well-grounded claim, the Board does not reach the merits, and the benefit-of-the-doubt doctrine is inapplicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The representative also contends, in his appellate brief, 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). He further contends that, if the Board finds that the RO did not comply with these provisions, that the Board should remand the claim for "full development" of the claim. M21-1 Part VI, 2.10(f) provides 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. Caluza, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the veteran has presented a well-grounded claim. As the veteran 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 the 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 provided by 38 U.S.C.A. § 5107(a)); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); 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 requires VA to ensure that the veteran 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) (1997)(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 v. Brown, 5 Vet. App. 91 (1993), 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 at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until a veteran has submitted a well-grounded claim, VA is under no duty to assist the veteran in establishing the evidentiary elements of his claim. 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 to merely 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 veteran's application for benefits is incomplete, VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the veteran's application is incomplete, or that he is aware of evidence which would render his claims well grounded, the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for degenerative joint disease of the right shoulder is denied. MARK F. HALSEY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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.