BVA9506077 DOCKET NO. 93-13 615 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to secondary service-connection for low back disability. REPRESENTATION Appellant represented by: Pennsylvania Department of Military Affairs Bureau for Veterans Affairs and Assistance ATTORNEY FOR THE BOARD M. L. Wright, Associate Counsel INTRODUCTION The veteran was on verified active service from January 1962 to January 1964. This appeal arises from a September 1992 rating action of the Philadelphia, Pennsylvania Regional Office (RO) which denied service connection for a low back disability as secondary to service connected bilateral pes planus. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in effect, that he suffers from a low back disability that is secondary to his service-connected bilateral pes planus. At the hearing on appeal, he also asserts that the U.S. Department of Veterans Affairs (VA) medical examination of August 1992 was inadequate and requests a new examination. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for secondary service connection for a low back disability is well-grounded. FINDINGS OF FACT 1. The appellant's claim that his low back disorder resulted from his service-connected pes planus was not accompanied by any medical evidence supporting this allegation. 2. The appellant's claim is not plausible. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the veteran has presented evidence of a well-grounded claim; that is, a claim which is plausible. If he has not presented a well- grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim because such development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, we find that his claim is not well-grounded. Under the applicable criteria, service-connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. 38 U.S.C.A. § 1131. Service-connection may also be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a) (1994). A review of the veteran's service medical records discloses that the examination report of October 1961, given at the time of his induction into the U.S. Army, noted his spine was normal. The medical records show a series of treatments for corns, calluses, and aches in his right foot. On the Report of Medical History dated November 1963, the veteran claimed to have trouble with his feet. The veteran made no mention of low back pain or any problems with his back. In the veteran's separation examination, of the same date, the spine was normal. The veteran noted trouble with his feet on the Report of Medical History for active duty training dated February 1965. There was no mention of any back problems. On the medical examination of the same date, the veteran's spine was normal. The veteran stated in a VA Social Survey dated May 1970, that he had been involved in an automobile accident in November 1969. A back x-ray reportedly was negative. In another VA Social Survey dated June 1974, obtained from the veteran's mother, she stated that the veteran complained of back pain at the time he was involved in an automobile accident four years before. On a VA examination in November 1978, the veteran complained of numbness and pain in both legs and feet. No complaint was made by the veteran concerning his back. The examiner made no mention of any low back disorder. Dr. Charles Gelb, a podiatrist, stated in April 1979, that he treated the veteran for chronic bilateral weak foot with arthritis. No mention was made of a back disability. In a VA examination in May 1979, it was noted that the veteran gave the same symptoms as he had in the November 1978 examination. The impression was severe pes planus accompanied by pain. Nothing was noted about back pain or problems with the veteran's low back. Leo S. Oakchunas, a chiropractor, submitted a letter dated July 1992, in which he stated he had treated the veteran for a low back problem since September 1980. It was noted that subluxations of the right ilium, 5L, and 3L caused the veteran's low back pain which radiated into both legs. Dr. Oakchunas made no connection between the veteran's low back pain and his pes planus. The veteran was given another VA examination in August 1992. He gave a 20 year history of lumbar spine pain. After the examination, the examiner diagnosed mild pes planus and doubted that the pes planus had any relation to the veteran's chronic low back syndrome. In the veteran's Substantive Appeal dated November 1992, the veteran stated that the doctor who gave him a VA examination in 1978 had told him that his pes planus would make his back condition worse. At the veteran's hearing on appeal in December 1992, the veteran gave testimony about his back and foot problems. From the veteran's induction into the U.S. Army until June 1992, the veteran made no claim to suffer from low back pain or problems with his spine. There is no mention of any back pain suffered by the veteran in the objective medical evidence until July 1992. While Dr. Oakchunas stated he had treated the veteran for low back pain since 1980, he never gave any opinion that the veteran's pes planus caused the low back pain. The VA medical examination of August 1992, conducted to determine if there was a link between the veteran's pes planus and his low back pain, left the examiner in doubt that the pes planus was the cause. The lay evidence of the veteran's mother has his back pain related to a 1969 automobile accident. The veteran himself is the only person to determine that his pes planus has caused his low back pain. The veteran's claim that a VA examiner told him that his pes planus would make his back worse is not corroborated in either the 1978 or 1979 VA medical examination reports. The United States Court of Veterans Appeals has held that evidentiary assertions on or accompanying a claim for VA benefits must be accepted as true for the purpose of determining whether the claim is well-grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. See Espiritu v. Derwinski, 2 Vet. App. 492; Tirpak v. Derwinski, 2 Vet. App. 609 (1992); King v. Brown, 5 Vet. App. 19 (1993). When the determinative issue involves medical causation, competent medical evidence to show the claim is plausible is required for a claimant to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91 (1993). A lay appellant's hearsay statement about what a doctor told him/her does not constitute competent medical evidence for purposes of rendering a claim well-grounded. See Robinette v. Brown, No. 93-985, (Vet. App. Aug. 26, 1993). In this case, the veteran asserts that his low back disability is etiologically related to his service-connected pes planus. Such a determination as to medical causation requires competent medical opinion, and no opinion brought forward links the veteran's low back disorder to his pes planus. The only person making such a link is the veteran, who is not medically competent to make this determination. In fact a VA examiner in August 1992, specifically expressed doubt at such a connection between the two disabilities. Since the veteran has not provided any competent medical evidence establishing a link between his low back disorder and his service-connected pes planus, it must be held that the claim for service connection for a low back disability is not well-grounded, and the appeal is dismissed. Since the veteran's claim is not well-grounded, the VA owes no further duty to assist the veteran in this claim and a new VA examination is unnecessary. ORDER Evidence of a well-grounded claim not having been submitted for entitlement to secondary service-connection for low back disability, the appeal is dismissed. C.W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.