Citation Nr: 0001972 Decision Date: 01/25/00 Archive Date: 02/02/00 DOCKET NO. 96-43 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a back disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Associate Counsel INTRODUCTION The veteran had active service from December 1958 to November 1960. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the veteran's claim of entitlement to service connection for a back disorder. In March 1998, the Board remanded the case to the RO for additional development. That development has been completed by the RO, and the case is once again before the Board for appellate review. The Board notes that the August 1996 rating decision on appeal also denied the veteran's claim of entitlement to service connection for a skin disorder. However, a March 1998 Board decision denied service connection for this disability. As such, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). FINDING OF FACT No opinion from a medical professional links the veteran's current back disorder to his period of military service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a back disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran claims that he currently suffers from a back disorder which had its onset during his period of military service. Therefore, service connection for this disorder has been sought. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Certain chronic diseases such as arthritis may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b) (1999). The preliminary question to be answered, however, is whether the veteran has presented evidence of a well-grounded claim. A well-grounded claim is not necessarily a claim that will ultimately be deemed allowable; rather, it is a plausible claim, properly supported with evidence. See 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1468 (1997); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to the claim, and the claim must fail. See 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). Three types of evidence must generally be presented in order for a claim for service connection to be well grounded: (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 injury or disease and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps, 126 F.3d at 1468. Alternatively, the United States Court of Appeals for Veterans Claims (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 498 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Id. In this case, service medical records reveal that the veteran was treated for back pain in February and March 1959. A February 1959 entry simply noted "aching back." When seen in March 1959, a clinician recorded that the veteran's complaints of back pain after doing physical training. No X- rays were performed and no diagnosis was provided. This condition appears to have resolved, however, as the remainder of the service medical records, including an August 1960 separation examination report, makes no further reference to any back problems. Thus, no chronic back disability was shown to have been present in service. At a hearing before the undersigned member of the Board in September 1997, the veteran testified that he had received ongoing VA treatment for back pain since the late 1970's. He clarified that all treatment was performed at the Westside VA Medical Center (VAMC). Based on that statement, the Board requested that the RO obtain any additional medical records from the Westside VAMC which pertained to the veteran's back disorder. Pursuant to that request, VA outpatient treatment reports dated from March 1973 through May 1998 were obtained and associated with the claim file. However, none of these reports refers to the veteran's back. Medical records from the University of Illinois at Chicago, dated from May 1995 to February 1996, show that the veteran was seen for back pain. Of particular relevance, a December 1995 radiology report of the lumbar spine noted the presence of possible unilateral or bilateral pars defects. The disc spaces were adequately maintained except for probable mild narrowing at the disc level between the lowest lumbar vertebra and the adjacent sacrum. At a VA examination in March 1996, the veteran complained of pain in his back and right leg. The examiner recorded the veteran's statement that he initially injured his back during basic training in 1958 due to overuse. Physical examination of the lumbar spine showed a decrease in range of motion, pain to palpation and neurological defects. The examiner concluded with diagnoses of "low back strain - muscular, mild degenerative lumbar spine, and no radiculopathy." However, the examiner provided no opinion as to the etiology or date of onset of the veteran's back disorder. After a review of the medical evidence, the Board finds that the veteran has not submitted a well-grounded claim of entitlement to service connection for a back disorder because there is no medical evidence of a nexus between the veteran's current back disorder and his period of military service. Service medical records did not show that the veteran suffered from a chronic back disorder in service. Furthermore, the veteran was first diagnosed with a back disorder in 1995, approximately thirty-five years after he left service, and no opinion from a medical professional links the veteran's back disorder to his period of military service. Although a VA examiner in March 1996 recorded the veteran's statement that this back disorder had its onset in service, the Court has stated that evidence which is simply a history recorded by a medical examiner, unenhanced by any additional comment by that examiner, does not constitute competent medical evidence of the required nexus. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995). The Board has also considered the veteran's own lay statements concerning the etiology of his back disorder, including testimony presented at the September 1997 Board hearing. However, where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). Since the record does not show that the veteran possesses the medical training and expertise necessary to render an opinion as to either the cause or diagnosis pertaining to a back disorder, his lay statements cannot serve as a sufficient predicate upon which to find his claim for service connection to be well grounded. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). Under these circumstances, the Board finds that the veteran's claim of entitlement to service connection for a back disorder is not well grounded. Therefore, the VA has no further duty to assist the veteran in developing the record to support his claim. See Epps, 126 F.3d at 1469 ("[T]here is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim."). The Board is also unaware of any information in this matter that would put VA on notice that any additional relevant evidence may exist which, if obtained, would well ground the veteran's claim. See generally, McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). The veteran testified at his Board hearing that he was first treated for post-service back pain by a Dr. Opper in the late 1960's or early 1970's. The veteran indicated, however, that Dr. Opper had long since been deceased and that his medical office had closed. Hence, the Board has no duty to attempt to obtain records associated with that treatment. Porter v. Brown, 5 Vet. App. 223, 237 (1993) (VA has no duty to seek and obtain that which does not exist). Further, the Board notes that the veteran has also testified that he has been receiving Social Security Administration (SSA) benefits since 1995 based on muscle and back problems, but the Board notes that the records are not associated with the claims file. Generally, where there has been a determination that the veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims, and must be obtained. See Cohen v. Brown, 10 Vet. App. 127, 151 (1997); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In situations where it is not indicated how particular records might be useful or the veteran acknowledges that the records no longer exist, there is no need to obtain the records. See Counts v. Brown, 6 Vet. App. 473, 476 (1994); Holoway v. Brown, 4 Vet. App. 454 (1993); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). The record indicates, however, that the veteran also stated that the SSA determination was based on records of treatment for his back disorder from the University of Illinois at Chicago where he had begun treatment a few years prior to the September 1997 hearing. The Board notes that the record does contain records of treatment of the veteran at that facility, and such records have been considered in this determination. In the absence of any indication that there are additional relevant records that might be obtained through the SSA, no request for records in this regard is deemed necessary. Finally, the Board views the above discussion as sufficient to inform the veteran of the elements necessary to present a well-grounded claim for the benefit sought, and the reasons why the claim has been denied. ORDER In the absence of evidence of a well-grounded claim, service connection for a back disorder is denied. S. L. KENNEDY Member, Board of Veterans' Appeals