Citation Nr: 0005131 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-27 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to April 1971. This appeal arises from an August 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, that denied service connection for a back condition. The veteran has appealed to the Board of Veterans' Appeals (Board) for favorable resolution of the claim. The veteran testified before an RO hearing officer in November 1997. Although he had also indicated a desire for a hearing before a member of the Board, he later withdrew his request for that hearing. FINDING OF FACT The veteran has not submitted competent medical evidence of a relationship between any current back condition diagnosed post service and active service or service connected disability; the claim is not plausible. CONCLUSION OF LAW The claim for service connection for a back condition is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records (SMRs) indicate that he received an electrical jolt while working onboard ship in October 1970. A sick call report indicates that the shock rendered him unconscious momentarily. The report notes that he was returned to duty with no disability. A sick call report dated two days later, reflects that he complained of recurrent dull ache across the back of the neck. He described the pain as seeming like a muscle ache. The impression was muscle strain due to electrical shock. Fiorinal was prescribed. Six days later, the veteran returned to sick call and reported that the Fiorinal had been ineffective for pain. He said that he had been on emergency leave in the interim and that was why he did not return to sick call sooner. He was referred to a medical officer for further evaluation. A report dated one day later (October 22, 1970) indicates that the veteran described a tight feeling in the back of the neck. The impression was situational anxiety and tension headache. Valium was prescribed. A December 1970 psychiatric evaluation report notes psychiatric symptoms following the electrical shock, unauthorized absence from October 23 to November 20, 1970, a diagnosis of emotionally unstable personality, existed prior to entry (EPTE), and that an administrative separation from the Navy was recommended. An April 1971 separation examination report is negative for any relevant medical condition. A May 1976 application for VA education or training benefits reflects that the veteran reported that he had never previously applied for any VA benefit, including hospitalization or medical care. The earliest dated post service medical reports are private medical reports from Strong Hospital. These reports reflect that in December 1976, the veteran was hospitalized for a seizure disorder. He reported several months of low back pain. He did mention a history of "electrocution." X-rays showed pars interarticularis defects of the posterior elements of the L5 vertebral body, but no spondylolisthesis. X-rays of the cervical spine were negative. A statement in the claim file dated in January 1979 reflects that the veteran believed that service connection was in effect for a back condition. He requested an increased rating for it; however, the claims file does not mention any claim for such a condition. Post service VA treatment reports reflect on going treatment for various health problems. Complaints of back pain were recorded in the early 1980s. Spondylosis of the lumbosacral spine with spondylolisthesis, osteoarthritic spurring, and disc space narrowing at L5-S1, with disc bulge and other severe degenerative changes were shown in 1996. Degenerative changes of C2-3 with malalignment of the vertebrae at that level were shown in 1996. A July 1996 VA medical certificate indicates that the veteran presented at the medical center with complaint of real bad back pain for which he said that he was service-connected. He said that he had been shocked by 440 volts during active service and had been told that the muscles had "spread" because of the shock. A VA examination ensued. During that examination, the veteran reported that the in-service injury was treated with Valium and pain medication. He reported that back and neck pain continued after active service. Examination revealed that the back was essentially with no tenderness and full range of motion. Straight leg raising was normal. The diagnostic impression was chronic back and neck pain with numbness of the upper extremities; rule out degenerative arthritis and cervical spondylosis. The examiner also stated, "I am not sure if the patient's back and neck pain and the paresthesia in the upper extremities are related to his history of electrical injury in 1970. The VA examiner then reported, "I am not aware of any long term damage from electrical injury." Motrin was prescribed. A March 1997 VA neurology consultation report reflects that there was no sign of myelopathy. The examiner opined that the veteran's symptoms were caused by C6-7 radiculopathy and that the chronic low back pain was secondary to lumbar spondylosis. In November 1997, the veteran testified before an RO hearing officer that he recalled VA treatment for his back as early as 1972. He reported that he received Valium to relax the muscles. The hearing officer noted that the earliest AMIE report indicated VA back treatment in 1981, not 1971. The veteran recalled that he did go to VA in 1971 to get a loan. He also recalled VA treatment in 1977 or 1978 in Menlo Park, California. He recalled that he was admitted there for detoxification. He testified that while hospitalized at Buffalo VAMC, he was told that the 440 volts tore muscle and other tissue in his back. He testified that he recently had a private magnetic resonance imaging (MRI) study at Strong. He testified that he was in an auto accident in 1973 and that any back condition at that time was felt to be preexisting. He could not recall the name of the insurance company who had handled that claim. He recalled that he did get VA treatment during 1971, 1972, 1973, and 1974 for his back, but that he did not file a service connection claim for his back at that time. In August 1998, the veteran reported that his doctor told him that electrical shock could cause certain peripheral neuropathies that he currently had. Service connection was ultimately denied for peripheral neuropathies, and the veteran was so notified in July 1999. No notice of disagreement has been received to date. II. Legal Analysis In order to establish service connection for a disability, the evidence must show that it resulted from a disease or an injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1137 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A chronic disease will be considered to have been incurred in service when manifested to a degree of 10 percent or more within 1 year from the date of separation from active service. See 38 C.F.R. § 3.307 (1999). Osteoarthritis or degenerative arthritis shall be considered a chronic disease within the meaning of 38 C.F.R. § 3.307. See 38 C.F.R. § 3.309 (1999). Initially, however, the threshold question with respect to any claim for service connection is whether the veteran has met his initial burden of submitting evidence to show that the claim is well-grounded, meaning plausible. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran must satisfy three elements for each claim for service connection to be well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be evidence of incurrence or aggravation of a disease or injury in service (medical evidence or, in some circumstances, lay evidence). Last, there must be evidence of a nexus or relationship between the in-service injury or disease and the current disorder, as shown by medical evidence. See Epps v. Gober, 126 F.3d 1464, 1468 (1997). The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection manifested itself to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumption period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumption period, if continuity is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 498 (1997). In regard to establishing a well-grounded claim, the Board notes that the SMRs reflect an injury due to electrical shock followed by complaint of muscle soreness across the shoulders with pain in the back of the neck. There is no mention of back pain in the SMRs nor are any chronic spinal conditions noted in the SMRs. There is competent post-service medical evidence of current back lumbar and cervical spine degenerative changes. These conditions were first shown many years after separation from active service. Moreover, in July 1996, an examining VA physician expressed doubt as to whether there could be a relationship between the current spine conditions and the in-service electrical shock. Thus, the Board finds that the veteran has not submitted evidence of an in-service back injury. The SMRs reflect no more than a muscle strain across the back of the neck. Secondly, although a current back condition clearly exists, no evidence of a relationship between it and active service or service- connected disability has been submitted. Lastly, no evidence tending to show that a chronic condition was manifested to a compensable degree within any presumption period has been submitted. The alternative well groundedness provisions noted in Savage, supra, do not apply in this case because no chronic disease was shown during service or within a presumptive period, and any condition claimed was not shown during service or within any presumptive period. Although the veteran has attempted to link current back conditions to active service, he, as a layman without proper medical training and expertise, is not competent to provide probative evidence on a medical matter such as the diagnosis or etiology of a claimed medical condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). In this regard, the Board emphasizes that a well-grounded claim must be supported by competent evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The claim must therefore be denied as not well grounded. Furthermore, the Board is aware of no circumstances in this matter that would put the VA on notice that any additional relevant evidence may exist which could be obtained that, if true, would well-ground the veteran's service connection claim. McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). It appears that the RO denied that veteran's claim on the merits, while the Board has concluded that the claim is not well grounded. However, the United States Court of Veterans Appeals has held that "when a RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). ORDER Evidence of well-grounded claim not having been submitted, the claim for service connection for a back condition is denied. J. E. Day Member, Board of Veterans' Appeals