Citation Nr: 9911823 Decision Date: 04/29/99 Archive Date: 05/06/99 DOCKET NO. 98-07 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a skin disorder of the feet. 2. Entitlement to service connection for right knee chondromalacia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from April 1991 to February 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1997 decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a skin disorder of the feet and right knee chondromalacia. The Board remanded this case in September 1998 for further development. FINDINGS OF FACT 1. No competent medical evidence has been submitted showing that any skin disability of the feet is attributable to military service or event coincident therewith. 2. No competent medical evidence has been submitted showing that any right knee chondromalacia is attributable to military service or event coincident therewith. CONCLUSIONS OF LAW 1. The claim of service connection for a skin disorder of the feet is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). 2. The claim of service connection for right knee chondromalacia is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran and his representative contend that the veteran has a skin disorder of the feet and right knee chondromalacia that began during his period of military service. Specifically, they allege that a skin problem first began in approximately 1993 or 1994 following a fuel spill in which the veteran was covered with fuel oil. As for right knee disability, they allege that the veteran first starting experiencing right knee pain in approximately 1994 while performing physical training aboard ship. It is maintained that he has continued to experience right knee problems since that time. It is also requested that the veteran be afforded the benefit of the doubt. 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 in developing the facts pertinent to the 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. 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 v. Derwinski, 1 Vet. App. 78, 81 (1990). 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 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 current disability. This third element may also be established by the use of statutory presumptions. 38 C.F.R. § 3.307, 3.309 (1998); See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The veteran's service medical records, including a February 1995 separation examination, are negative for complaints, diagnoses, or treatment for either a skin disorder of the feet or a right knee problem. An undated record entitled "Medical Surveillance Questionnaire" shows the veteran worked around flammable materials, paints, grease, and oils. It was also reported that he wore the following protective gear: rubber gloves, goggles, face shields, and/or safety shoes. No skin or right knee problem was noted. More recently, at a March 1996 VA examination, the veteran reported a history of having had a foot rash since 1992. He indicated that he had been told that he had a foot fungus; he said that he was treated with salve. He noted that the rash appeared periodically and he did not notice any seasonal variations. As to his right knee, he complained of right knee pain and swelling since being stationed in Texas. However, he could not recall a specific injury. On examination, his skin showed some excoriation and scaling. The examination and x-ray study of the right knee were considered normal. The diagnoses were dermatitis not otherwise specified and right knee pain with normal examination and x-rays. The veteran testified in July 1998 that his skin problem first arose in approximately 1993 or 1994 while in the Navy. Specifically, he reported that, while taking on fuel aboard ship, a spill occurred which caused him to be covered with fuel oil. After the spill, he had to undergo special decontamination procedures. He thereafter had problems with the skin on his feet. His only in-service treatment was from a Navy corpsman aboard his ship. The corpsman x-rayed his feet and found no fracture. He then gave the veteran anti- fungal medication (both topical and oral). The veteran said that, since that time, the skin of his feet had been discolored. He also had had blisters on the soles of his feet, and he had problems with swelling and itching. As for his right knee claim, the veteran testified that he first starting experiencing right knee problems in approximately 1994 while stationed in Texas. Specifically, he noticed a problem--right knee pain--while performing physical training. He sought treatment at the base hospital on two occasions. While he remembered that x-rays were taken and that he was given anti-pain medication, he could not remember his diagnosis. Nevertheless, he has since experienced periodic knee pain. Additionally, he also has had knee pain after prolonged standing. His pain was centered on the medial and lateral sides of the knee joint. He described his pain as a "locking" type sensation. He also reported crepitus with the use of the knee. The veteran, as a minesweeper boatswain, did a lot of heavy lifting and rigging. While performing his job, he periodically banged his knee. He could not point to one particular incident that caused his knee problem, yet he did recall one incident in approximately 1993 or 1994, while aboard ship, when he fell down a ladder and injured his knee. At that time he saw a corpsman; he wrapped up the knee himself with an Ace bandage and had no further problems with the knee. What is significant about the evidence described above is, paradoxically, what it does not include. None of the records on appeal includes a medical nexus opinion that tends to show a relationship between a current disability (skin disability of the feet or right knee chondromalacia) and military service. Likewise, no medical opinion has been presented that tends to show a relationship between a current disability and continued symptoms since service. Clyburn v. West, No. 97-1321 (U.S. Vet. App. April 2, 1999). Furthermore, not only does the record on appeal not contain nexus evidence for either of the veteran's claimed disabilities, but service medical records do not contain complaints, diagnoses, or treatment for either a skin disorder of the feet or a right knee disability. Moreover, the Board notes that pertinent laws and regulations provide that certain disabilities such as arthritis will be presumed to have been incurred in service if it becomes manifest to a compensable degree within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991; 38 C.F.R. §§ 3.307, 3.309 (1998). However, there is no evidence in the record that the veteran has arthritis in his right knee. Therefore, this statutory presumption does not aid the veteran in establishing a well-grounded claim. In reaching its conclusions in this case, the Board has not overlooked the veteran's testimony at his July 1998 videoconference. However, while a lay witness can testify as to the visible symptoms or manifestations of a disease or disability, his own opinion as to medical etiology, a question integral to the underlying claims of service connection, is not helpful. See Caldwell v. Derwinski, 1 Vet. App. 466 (1991); Bostain v. West, 11 Vet.App. 124 (1998) (someone qualified by knowledge, training, expertise, skill, or education, which the veteran is not shown to possess, must provide evidence regarding medical knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, (1992). Furthermore, the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion. LeShore v. Brown, 8 Vet.App. 406 (1995); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). Accordingly, the veteran's lay assertions regarding medical etiology do not constitute competent evidence sufficient to make either claim well grounded. It has also been suggested 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, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). Because no competent medical evidence has been presented to link any currently diagnosed disability to service, the veteran's claims are not well grounded. His representative has also requested consideration of the benefit-of-the-doubt doctrine; however, this doctrine does not apply until after the veteran has submitted a well-grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for a skin disorder of the feet is denied. Service connection for right knee chondromalacia is denied. MARK F. HALSEY Member, Board of Veterans' Appeals