Citation Nr: 9924440 Decision Date: 08/27/99 Archive Date: 09/08/99 DOCKET NO. 97-29 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for a below-the-knee amputation of the right leg as a result of osteochondritis dissecans of the right talus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from January 1964 to September 1964. This matter comes to the Board of Veterans' Appeals (Board) following a February 1997 decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claim of service connection for osteochondritis dissecans of the right talus. Thereafter, the RO described the issue in an April 1997 statement of the case as including a below-the-knee amputation. The issues were characterized as entitlement to service connection for osteochondritis dissecans of the right talus and service connection for a right below-the-knee amputation. FINDING OF FACT No competent medical evidence has been submitted showing that the veteran's current disability, namely a below-the-knee amputation of the right leg, is attributable to military service or event coincident therewith, such as osteochondritis dissecans of the right talus. CONCLUSION OF LAW The claim of service connection is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran and his representative contend that the veteran's right below-the-knee amputation was brought about as a result of his military service. Specifically, they allege that the veteran sustained a right ankle injury while in basic training which never fully healed because of a delay in receiving treatment. Moreover, they allege that the veteran's diabetes would not have led to the need to amputate the lower part of the veteran's right leg if that leg had not been in a weakened state due to the right ankle injury. 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 include a January 1964 entry examination that was negative for complaints, diagnoses, and/or treatment for a right ankle disorder. Thereafter, service medical records, starting in July 1964, show the veteran's complaints, diagnoses, and/or treatment for right ankle pain. Additionally, the veteran stated in the foregoing records that his ankle pain had started during basic training. See treatment records dated in July 1964. A July 1964 right ankle x-ray was normal except for revealing osteochondritis dissecans of the right talus. Thereafter, a July 1964 separation examination also reported that the veteran had osteochondritis dissecans of the right talus. Subsequently, an August 1964 medical evaluation board (MEB) examination and proceeding revealed that the veteran claimed to have had intermittent right ankle pain since basic training in approximately February 1964, which pain, beginning in approximately July 1964, became chronic. Starting in July 1964 the veteran's right ankle was immobilized in a cast and the veteran was placed on crutches. However, his adverse symptomatology did not abate. On examination, the veteran could not bear weight on his right foot. Nevertheless, the ankle was not swollen and had full range of motion. The MEB opined that x-rays revealed a condition that pre-existed military service and was not permanently aggravated due to military service. An October 1993 statement from the veteran's private physician reported that the veteran complained of pain in his leg, was diagnosed with severe peripheral vascular disease, had a history of diabetic peripheral neuropathy, and was status post right below-the-knee amputation. (The Board notes that no other relevant medical evidence was associated with the record on appeal.) Statements from the veteran's sister, employer, and wife were received by the RO in November 1996 and September 1997. In her November 1996 statement, the veteran's sister reported that the veteran came home from military service in the fall of 1964 wearing a cast and using crutches. Thereafter, he periodically lost time from work because of leg discomfort. Subsequently, in the summer of 1993, the veteran had his leg amputated. Similarly, in a September 1997 letter, the veteran's employer wrote that the veteran had chronic ankle pain that required that his job duties be changed. In addition, the veteran's wife reported in her September 1997 letter that she first met the veteran several months prior to his entry into military service and at that time he was in good health without any lower extremity problems. Subsequently, upon seeing the veteran after he had completed basic training, she noticed he had a limp. The veteran told her at that time that he had been kicked by another soldier which had injured his ankle. Thereafter, she saw the veteran after his separation from military service. At that time he had a cast and used crutches to walk. Since that time, even after the cast came off, the veteran had problems ambulating due to pain and swelling in his ankle. Eventually, the veteran was diagnosed with diabetes and a skin ulcer developed over his bad ankle. Moreover, the ulcer and associated infection spread and this required that his leg be amputated to save his life. Given the evidence described above, the Board finds that 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 the right below-the-knee amputation and military service. Likewise, no medical opinion has been presented that tends to show a relationship between current disability and continued symptoms since service. Although the veteran was diagnosed with osteochondritis dissecans of the right talus for the first time during service, no medical evidence has been presented that tends to link his current disability--below-the-knee amputation--to his in-service problem or to other problem coincident with service, such as any injury incurred during basic military training. The Board has considered the contentions of the veteran's sister, wife, and employer, as well as the veteran, made through written statements filed with the RO. However, these statements do not provide the requisite medical nexus. While these individuals are competent to provide information as to the visible symptoms the veteran experienced during and after service, they have not been shown to be competent to provide the medical opinion evidence necessary to make his claim of service connection well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993) (persons without medical expertise are not competent to offer medical opinions); Grottveit v. Brown, 5 Vet. App. 91 (1993); Bostain v. West, 11 Vet. App. 124 (1998). Therefore, because no competent medical evidence has been presented to link current disability--right below-the-knee amputation--to service, his claim is not well grounded. The representative has also requested consideration of reasonable doubt; however, this principle does not apply until the veteran has submitted a well-grounded claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). ORDER Service connection for a below-the-knee amputation of the right leg as a result of osteochondritis dissecans of the right talus is denied. MARK F. HALSEY Member, Board of Veterans' Appeals