Citation Nr: 0002707 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-32 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from October 1971 to October 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision from the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for a back condition. The RO, in a rating decision dated October 1997, denied the veteran's claim of entitlement to service connection for post traumatic stress disorder (PTSD) with bipolar disorder and major depression. The veteran was notified of that decision by letter dated October 1997. A timely filed Notice of Disagreement was received in September 1998 and a Statement of the Case was issued in January 1999. A substantive appeal was not received until September 1999. The veteran filed another claim for service connection for PTSD in September 1999. The RO notified the veteran later that month that his claim for PTSD was perfected for appeal and remained pending. However, in view of the provisions of 38 C.F.R. § 20.302(b) (1999), this matter is referred to the attention of the RO. The Board notes that the RO granted the veteran entitlement to nonservice-connected pension in a rating decision dated January 1999 for PTSD with bipolar disorder and major depression and residuals of a low back injury effective December 22, 1997. FINDING OF FACT There is no competent evidence linking the veteran's current low back disability to a documented upper back injury in service many years ago or otherwise linking it to service or to claimed continuity of symptomatology since service. CONCLUSION OF LAW The claim of entitlement to service connection for a low back disability is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The service medical records show that in July 1972 the veteran complained of an injury to his right upper back sustained when a piece of steel frame equipment fell on his back while he was pouring concrete. Physical examination disclosed moderate tenderness and the examiner reported that the shoulder and back were within normal limits. An X-ray was noted to be negative. The impression was contusion. Darvon was prescribed. The remaining service medical records show no further complaints of, or treatment for a right upper back injury. The separation examination report, dated in May 1972, indicates that there were no significant defects or diagnoses. Physical examination showed that the veteran's musculoskeletal system was normal and no complaint of back pain was noted. In a VA Form 526 filed in March 1996 the veteran reported post-service treatment in 1991 for his back. The veteran presented for a VA medical examination in May 1996. The veteran reported that during service a metal frame was pushed down on him knocking him to the cement. He denied having received medical attention for his injury and stated that ever since the incident he had had chronic back pain. In addition, he reported that he had had several industrial injuries to his lower back since separation from service. Physical examination revealed no significant local tenderness and no abnormal curvature. The veteran described pain, noted by the examiner not to be "classical." The veteran indicated that when working for a few days as a carpenter his back would begin to hurt and that he had about five bouts of acute lower back pain a year. Following a physical examination, the impression was chronic lumbar strain with episodic acute mechanical lower back pain. An x-ray examination showed that alignment was normal. The impression was disk interspace narrowing at L5-S1. The radiologist opined that the disk space narrowing might be consistent with degenerative disk disease, although he noted that narrowing is also seen at the same level normally. VA outpatient records from July to October 1997 reflect that when the veteran was seen in July, he was noted to have a prior history of back pain and to have fallen at work a month ago with continuous pain since then. Reportedly L5-S1 disc disease had been diagnosed a year earlier. The assessment was back pain. In September 1997 the veteran complained of lower back pain at the level of L4-L5. A week later he was seen again for low back pain. The clinical assessment was traumatic low back pain for four months since being injured in June. Following a physical examination, the assessment was low back pain secondary to trauma. A week later the veteran was again seen for back pain and the assessment was traumatic low back pain for four months. Later that month he complained of continued back pain since being injured on the job in June 1997 when he slipped and fell. The impression was low back pain. The examiners noted that the veteran rejected nonmedicinal remedies such as physical therapy, as well as antiinflammatory medications. A variety of pain medications were prescribed, primarily Percocet. Criteria 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 [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the U.S. Court of Appeals for Veterans Claims (Court) held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." For a claim to be well grounded, there generally 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 injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy v. Derwinski, 1 Vet. App. 78 (1990). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service 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 if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). Service connection may also be granted for a 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). Analysis The threshold question to be decided in the veteran's appeal is whether he has presented evidence of a well-grounded claim. "[A] person who submits a claim for benefits under a law administered by the Secretary 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); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well-grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). The veteran has contended that his current low back problems are due to a construction accident in service, stating that as early as 1973 an orthopedist diagnosed degenerative disc disease but that he can't remember the doctor's name. The service medical records establish that the veteran sustained an injury to the right upper back when a steel frame fell on him. Treating medical personnel reported that the back was within normal limits and diagnosed only a contusion, noting that an x-ray examination was negative. Physical examination at separation in May 1972 showed that the veteran's musculoskeletal system was normal at that time. Thus, the medical evidence does not show a low back injury in service or any relevant abnormality on the separation examination. The veteran did not file a claim for service connection until more than 20 years after service. The post-service medical records indicate that he sustained several post-service industrial injuries to the low back, including one in 1997, after which there are documented low back complaints. Consequently, the determinant issue in this case is whether the veteran's current low back condition is attributable to the in-service injury in 1972 or is otherwise related to service. This is a question of medical etiology; therefore, competent medical evidence is required to well ground the claim. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). However, there is nothing the post-service medical records that links current back problems to service. The veteran has not provided or identified competent medical evidence of a nexus between any in-service injury and his current condition. The only evidence relating the current back condition to the in-service injury consists of statements from the veteran. The evidence does not establish that the veteran possesses a recognized degree of medical knowledge; therefore, his own opinions as to medical diagnoses and/or causation are not competent. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 495 (1992). Absent evidence of a link between the in-service injury and the current condition, the claim is not well grounded. The Board acknowledges that the veteran alleges continuity of symptomatology even though the recent outpatient medical records seem to attribute his back complaints to the accident in June 1997. In any event, no competent evidence of a nexus between his current condition and an in-service injury has been provided. Essentially, the veteran argues that his claim is well grounded under the 38 C.F.R. § 3.303(b) continuity-of-symptomatology alternative criteria and Savage v. Gober, 10 Vet. App. 488 (1997). In this case, a low back disorder was not "noted" in service, for purposes of applying the section 3.303(b) alternative criteria. The service medical records show that the veteran complained of a right upper back injury and not a low back injury. Although physical examination disclosed moderate tenderness, the examiner noted that the back was within normal limits. The service medical records show no diagnosis of degenerative disc disease or any other back condition affecting the low back. However, even if the in-service findings can be considered a back condition as "noted" in service, the claim would remain not well grounded due to a lack of medical nexus evidence. Although the veteran's report of ongoing back symptoms may establish evidence of post-service continuity of a low back symptomatology, this does not satisfy the third element of a well grounded claim under section 3.303(b). The Board finds that the veteran has not submitted sufficient evidence of nexus between the present disability and the post-service symptomatology. The record on appeal does not contain any medical opinion indicating that the appellant's current back disorder is related to any back problem in service or to the claimed continuity of symptomatology. The VA examination report notes the history given by the veteran of back pain since service but it is simply information recorded by the examiner, and is unenhanced by any additional medical comment. Thus it does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In fact, there is a complete absence of medical evidence showing a link between any current low back disorder and any in-service back injury. This is not a case where lay testimony is competent to provide the required evidence of a nexus. Although the appellant, even as a layperson, is competent to describe that he has experienced back pain located in the low back area, he is not competent to provide a medical conclusion as to the cause of such pain. Consequently, continuity of symptomatology will not well ground this claim. See Clyburn v. West, 12 Vet. App. 296 (1999) In this respect, the Board notes that this case is distinguishable from Falzone v. Brown, 8 Vet. App. 398 (1996), where the Court held that lay evidence of continued foot pain coupled with in-service and current diagnoses of pes planus were sufficient to render a claim well grounded under the continuity-of-symptomatology provisions of section 3.303(b). Unlike the issue in Falzone, which was the existence of the condition (flat feet), as to which visual observation by a lay person was deemed sufficient by the Court, the issue here is the cause of the veteran's low back disorder, a matter that requires competent, medical evidence, especially given the history of several industrial injuries to his lower back since separation from service; thus, neither he nor any other lay person can credibly testify as to the origin of his current condition. Hodges v. West, No. 98-1275 (U.S. Vet. App. Jan. 12, 2000). Accordingly, the claim is not well grounded and must be denied. As the veteran's claim for service connection for a back disability is not well grounded, the doctrine of reasonable doubt has no application to this case. The Court has held that if the appellant fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1999). The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well-grounded claim, and the veteran has not indicated the existence of any evidence that has not already been obtained that would well ground his claim. In fact, the veteran stated that his records of post-service medical treatment for his ongoing low back problems are not available or he could not recall the name of the treating physician. He does not allege that any existing medical opinions include a medical opinion relating his current back condition to active service. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, , 126 F.3d 1464 (Fed. Cir. 1997). The veteran's service representative contends that VA has expanded its duty to assist because it is required to fully develop a claim before making a decision on claims that are not well-grounded. In support of this contention the representative cites provisions of the VA Adjudication Procedure Manual M21-1. He cites to Part VI, paragraph 2.10f and Part VI, paragraph 1.01b in support of the proposition that the RO must fully develop a claim prior to a determination of whether a claim is well grounded. Subsequent to the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet. App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. § 19.9 (1999) prior to determining that a claim is not well-grounded. In addition, it was more recently held that under 38 U.S.C.A. § 5107(a), VA has a duty to assist only those appellants who have established well-grounded claims. Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). The Board is not bound by an administrative issuance that is in conflict with binding judicial decisions, and the Court's holdings on the issue of VA's duty to assist in connection with the well-grounded claim determination are quite clear. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.5 (1999). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application for service connection. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77- 78 (1995); Mcknight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER Entitlement to service connection for a low back disability is denied. JANE E. SHARP Member, Board of Veterans' Appeals