Citation Nr: 9901286 Decision Date: 01/20/99 Archive Date: 01/22/99 DOCKET NO. 97-27 112A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a right hip replacement. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Wanda Beamon, Associate Counsel INTRODUCTION The appellant served on active duty from June 1945 to October 1945. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 1997 rating action. FINDING OF FACT The record contains no competent medical evidence of an association between any current hip disability and military service, injury in service, or continued symptoms since service. CONCLUSION OF LAW The claim of entitlement to service connection for a right hip replacement is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION 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. §§ 1110 (West 1991); 38 C.F.R. § 3.303(a) (1998). When a 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) (1998). 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). 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). 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. The United States Court of Veterans Appeals (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; Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). During the current appeal, the appellant has asserted that service connection should be granted because the disability began during service. At his personal hearing, he testified that he fell from a bunk and hit his hip on a cast iron register. Hearing Transcript (T.) at 2. According to the appellant, he was placed in the infirmary and a heat lamp was applied to his hip. T. at 2. In support of his contentions, the appellant submitted a statement, dated in November 1996, from a fellow veteran who stated that he served with the appellant in 1943 and slept in barracks-like quarters in upper and lower bunks. Further, he stated that the appellant fell out of an upper bunk onto a short, four to five foot radiator about twelve to fourteen inches wide and injured his back, side and head. It was reported that the fall rendered the appellant unconscious and convulsive. Moreover, the appellant testified at his March 1998 personal hearing, and reiterated in a statement dated in December 1997, that none of his family members had had arthritis, with the exception of his mother who had arthritis because of trauma to the hip. T. at 3. The veteran’s available service medical records do not indicate that the veteran had any right hip difficulty in service. Additionally, there is no indication that he experienced any arthritis. It was not until 1975 that a right hip problem was clinically identified. The veteran was seen in December 1975 with complaints of pain, and arthritis of the joint with osteonecrosis of the right femoral head was noted. A right hip replacement was performed which subsequently had to be revised in 1987. The Board also notes that the veteran has submitted fact sheets and medical information which indicate that arthritis may occur as a result of trauma. The Board acknowledges the appellant’s assertion that he developed right hip arthritis as a result of the in-service fall from an upper bunk. Nevertheless, the Board finds that his claim is not well grounded because of the absence of medical nexus evidence linking the arthritis which the veteran developed many years after service to the in-service injury. Even conceding that arthritis may occur as a result of injury and recognizing the fall the veteran experienced in service, without a medical opinion attributing the veteran’s right hip arthritis to such trauma, or to continuous symptoms since service, see Savage v. Gober, 10 Vet.App. 489 (1997), his claim may not be considered well grounded. Additionally, since no evidence has been presented that tends to show that arthritis was manifested within a year of the veteran’s separation from service, the provisions of §§ 3.307, 3.309 do not provide a basis for concluding that the claim of service connection is well grounded. Caluza, supra. It should be noted that, while the appellant was told by the RO that his medical records were destroyed in a fire at the National Personnel Records Center, a review of the claims folder discloses that some service medical records were in fact obtained. A salient point to be made is that the Board’s decision to deny this claim is not premised upon the lack of official service records. Indeed, the Board has carefully considered the appellant’s statements with respect to events occurring both during and after service and, for purpose of considering whether his claim is well grounded, has presumed that these statements are true in all respects. 38 U.S.C.A. § 1154(b), 38 C.F.R. § 3.304(d). See King v. Brown, 5 Vet.App. 19, 21 (1993). The problem in this case is that no nexus or medical opinion has been submitted which tends to show that a current hip disability can be attributed to the in-service injury that the appellant has described. As noted above, without such evidence, his claim cannot be considered well grounded. It has also been contended on the veteran’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 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 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 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 claim well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER The appellant’s claim of entitlement to service connection for a right hip replacement 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. - 2 -