Citation Nr: 0004655 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-00 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lumbar strain (claimed as low back pain). 2. Entitlement to service connection for bilateral shin splint. 3. Entitlement to service connection for bilateral plantar fasciitis. ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant had active service from June 1996 to April 1997, with approximately two months prior, unverified active service and approximately one-month prior inactive service. This appeal is from a May 1997 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). For reasons explained below, the Board defers appellate review of the claim for lumbar strain. FINDINGS OF FACT 1. The appellant has submitted evidence of a current medical diagnosis of lumbar strain, of a condition noted in service with continuity of symptomatology of that condition thereafter, and of a nexus between the current diagnosis and the symptomatology that is continuous with the condition noted in service. 2. There are ambiguities in the medical evidence and service record before the Board relative to the claim for service connection for lumbar strain. 3. The appellant has not submitted competent medical evidence of a current diagnosis of bilateral shin splints or of bilateral plantar fasciitis. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for lumbar strain (claimed as low back pain) is well grounded, and VA has not discharged its duty to assist the appellant to develop facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. Claims of entitlement to service connection for bilateral shin splint and for bilateral plantar fasciitis are not well grounded, and VA has no duty to assist the appellant to develop facts pertinent to her claims. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Service medical records show the appellant reported no current medical complaints on medical pre-screening in March 1995. A March 1995 medical history for enlistment in the Army National Guard was also negative for back, shins and feet. A March 1995 entrance physical examination revealed mild dorsal scoliosis, asymptomatic, not considered disqualifying. On August 10, 1995, the appellant was seen for complaints of low back pain for one week. Examination revealed mild pain on full flexion to paraspinal muscles, L5-S1, assessed as mechanical low back pain. In July 1996 she was seen for complaints of shin splints in the right leg for a week and a half when running or walking. Right anterior shin tenderness on palpation was assessed as shin splints. The appellant was seen repeatedly in December and January 1997 with complaints of pain and tenderness in both shins, assessed as bilateral shin splints. A January 1997 medical history for separation was positive for current or past recurrent back pain; a doctor's summary stated episodic low back pain since August 1995. In February 1997 the appellant was seen for complaints of shin and back pain, assessed as mechanical low back pain and bilateral shin splints. An x-ray study of the right tibia and fibula was negative. In February 1997, the appellant was put on physical profile for bilateral shin splints. The appellant was seen in March 1997 for complaints of low back pain since July 1996. Examination was negative except for tenderness to palpation of the paravertebral muscles L2- L5. The assessment was mechanical low back pain. A March 1997 list of temporary (minor) problems listed shin splints since December 1996 and low back pain since June 1996. In April 1997 the appellant complained of bilateral foot pain, arch and heel, for two weeks, worse with ambulation. Examination revealed reducible pes planus, over pronation, tenderness to palpation over the transverse arch and plantar surface of foot. The assessment was plantar fasciitis. A private medical record of July 1997 reveals the appellant sought treatment for complaint of low back pain of about one year duration, which she reported began without major injury while on active duty. The appellant reported positions and activities that increased and decreased pain. Examination showed full range of motion, no pain on straight leg raising, mild dextroscoliosis. She was intact neurologically. The assessment was chronic low back pain secondary to muscle strain versus scoliosis. Other assessment was shortness of breath with exertion. The appellant voiced no other complaints. On VA examination in September 1997, the appellant reported the onset of back pain in August 1996 while exercising. She reported the pain persists and she had had no treatment for her back since service. Her current complaint was intermittent low back pain, after sitting, with prolonged standing, morning and evening. Objectively, positive findings were an increased lordotic curve in the spine, tenderness in the L4-5 area in the midline, with pain on extension. The examination was otherwise negative. There was no fixed deformity other than the lordotic curve. There was normal musculature of the back. Range of motion was essentially full. There was pain at 20 degrees of lumbar extension, with that as the only objective evidence of pain on motion. X-ray studies of the lumbosacral spine revealed spina bifida occulta of S1 with lumbar vertebrae intact and disc spaces preserved. The examiner diagnosed soft tissue strain, lumbar, secondary to increased lordotic curves, and spina bifida occulta. A September 1997 VA x-ray study of the feet was negative. Bone density and architecture were normal. There was no evidence of osteoblastic or osteolytic process. The joint spaces were preserved without evidence of arthritic change. There was no soft tissue swelling or calcification. II. Analysis In seeking VA disability compensation, the appellant seeks to establish that current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 1991). Such a disability is called "service connected." 38 U.S.C.A. § 101(16) (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (1999). Before the Board may consider the merits of the claim, preliminary determinations are required. First, it must be determined that the application for benefits is complete, and if not, whether VA has discharged any duty it may have to so inform the claimant. 38 U.S.C.A. § 5103(a) (West 1991). The appellant has provided no information indicating a source of evidence not of record. His application for disability compensation is complete, and VA has no duty to inform him of the necessity to submit any evidence to complete it. Second, "a person who submits a claim for benefits under a law administered by the Secretary [of Veterans Affairs] shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). If the appellant does not meet that burden, the Board will not consider the merits of the underlying claim. Grottveit v. Brown, 5 Vet. App. 91 (1993). "For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (quoting Epps v. Gober, 9 Vet. App. at 343-44 (citations and quotations omitted)); see Grottveit, 5 Vet. App. 91 (characterizing the type of evidence, lay versus medical, necessary to well ground a claim as dependent on the nature of the matter to be proven); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (lay individuals are competent to testify about matters of common experience, but expert qualification is necessary for VA to take cognizance of testimony that is rendered reliable only by expertise pertinent to object of inquiry). A claim may also be well grounded, after meeting the first requirement, on evidence that a condition was noted in service, evidence of continuity since service of symptomatology of that condition, and medical evidence of a nexus between the current disability and the continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Evidence is presumed true for the limited purpose of determining if a claim is well grounded. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Alternatively, a claim may be well-grounded by evidence of continuity of symptomatology with a condition noted in service, 38 C.F.R. § 3.303(b) (1999), and a competent medical opinion that there is a nexus between a currently diagnosed disorder and the symptomatology for which there is continuity with the condition noted in service. Savage v. Gober, 10 Vet. App. 488 (1997). A. Lumbar Strain The appellant has produced medical evidence of a current diagnosis of lumbar strain. The service medical record shows treatment for low back complaints in service. The service records repeatedly assess the complaints as mechanical low back pain. Consequently, the service records are not evidence of incurrence in service of lumbar paravertebral muscle strain, which is essentially the July 1997 private and the September 1997 VA diagnosis. Thus, the record lacks the second element of a well-grounded claim under the criteria stated above. The service medical records are evidence of a condition noted in service. See 38 C.F.R. § 3.303(b). The appellant's statements and the July 1997 private medical records are evidence of continuity of symptomatology. Id. There is no statement from a competent medical practitioner that there is a nexus between the current diagnosis and the symptomatology that the appellant reports is continuous with service. The symptoms she reports as ongoing from service until the time of the first post-service diagnosis, three months after separation, are within her competence of a lay person to observe. Thus, her lay statement is sufficient to establish a nexus in this case. Savage, 10 Vet. App. 488. Whereas the claim is well grounded, VA has a duty to assist the appellant to develop facts pertinent to her claim. 38 U.S.C.A. § 5107(a). As is explained in the remand following this decision, VA has not discharged that duty. B. Shin Splints and Plantar Fasciitis The September 1997 VA examination report does not show a clinical examination of the appellant's shins or feet. Regulation requires a VA examination in an original claim for compensation when the claim is well grounded. 38 C.F.R. § 3.326(a) (1999). Therefore, any failure by the RO to obtain a VA examination of the appellant's shins and feet was not a violation of any right the appellant had or has in this case. The appellant has not submitted competent medical evidence that she currently has bilateral shin splints or bilateral plantar fasciitis. VA disability compensation is authorized by law for current disability resulting from disease or injury incurred or aggravated in service, not for the disease or injury in service itself. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). Thus, a claim for compensation for a disability not currently shown to exist cannot be well grounded. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). For a claim to be well grounded, the required evidence that the claimed disabilities currently exist must be medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995)(citations omitted) aff'd 78 F.3d 604 (Fed. Cir. 1996) (Table). Significantly, the July 1997 private medical record is silent about the shins and the feet. The question whether the appellant's statements can provide a nexus in the absence of a medical opinion on that point does not arise in these two issues. A nexus must be between two things. There can be no nexus between a currently diagnosed disability and anything without the current diagnosis. The appellant has not presented a well-grounded claim for service connection for bilateral shin splints or for bilateral plantar fasciitis. Absent a well-grounded claim, VA has no duty to assist the appellant to develop facts pertinent to a claim, Morton v. West, 12 Vet. App. 477 (1999), and the Board does not have jurisdiction to adjudicate the claim on the merits. Boeck v. Brown, 6 Vet. App. 14 (1993). ORDER The appellant has presented a well-grounded claim of entitlement to service connection for lumbar strain (claimed as low back pain), and to that extent the claim is granted. Whereas the appellant has not submitted a well-grounded claim of entitlement to service connection for bilateral shin splints or for bilateral plantar fasciitis, those claims are denied. REMAND The medical evidence pertaining to the appellant's low back requires clarification. Dorsal scoliosis was noted on entrance into service. Private medical examination attributed low back findings to alternative possible causes, muscle strain or scoliosis. The September VA examiner found no fixed deformity, attributing lumbar strain to increased lordosis. The report raises multiple questions: What became of the twice-reported dorsal scoliosis? What caused the increased lordosis? Was there aggravation in service of a pre-existing condition beyond its natural progress? The Board also needs verification of the appellant's periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). The August 1995 medical record of low back complaint predates by four days an incident shown to have occurred while on active duty. However, the record of a back complaint noted onset a week before the complaint. Her duty status at the time of onset could bear on whether the condition for which the appellant seeks service connection was sustained during or pre-existed service, thus whether she must show aggravation to win her claim. Additionally, if a current disability is traced to a period of ACDUTRA or INACDUTRA, whether the disability results from injury or disease may determine legal entitlement to service connection. See 38 U.S.C.A. § 101(24) (West 1991). Accordingly, the case is REMANDED for the following action: 1. Obtain verification of the appellant's duty status, whether ACDUTRA or INACDUTRA, prior to June 17, 1996, from the state Adjutant General, or other appropriate agent, and associate any information obtained with the claims folder. 2. Schedule the appellant for a VA orthopedic examination to determine the etiology of any currently diagnosed low back condition. Provide the examiner the claims folder for review of the service medical records and the July 1997 private medical record. The examiner should opine whether any currently diagnosed low back condition is related to an underlying acquired or congenital condition, and whether any condition shown to have existed before service became worse in service due to an increase in an underlying pathology that has persisted to the present. 3. Readjudicate the claim for service connection for lumbar strain (claimed as low back pain), including consideration of whether incurrence or aggravation on ACDUTRA or INACDUTRA is a material element of the claim. If the claim is not allowed, provide the appellant and her representative an appropriate supplemental statement of the case and an appropriate period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals