BVA9508368 DOCKET NO. 93-13 541 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to an effective date, prior to August 14, 1991, for the assignment of a 20 percent evaluation for dorsolumbar fibromyositis with dorsolumbar scoliosis, 3. Entitlement to an effective date, prior to August 14, 1991, for the assignment of a 10 percent evaluation for residuals of a fractured left tibia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD J. Johnston, Associate Counsel INTRODUCTION The veteran had active service from July 1956 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1992 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits sought on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in denying service connection for sinusitis which he asserts was incurred during service in Korea and which has been chronic ever since that time. The veteran contends that the RO erred in failing to assign an earlier effective date to the service-connected disability in that this disability was incurred in service and that his initial claim for service connection for this disability was filed in August 1968. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims folder, and for the following reasons and bases, it is the decision of the Board that the veteran's claim for entitlement to service connection for sinusitis is not well grounded. The preponderance of the evidence is in favor of a grant of an effective date, prior to August 14, 1991, for assignment of a 20 percent evaluation for dorsolumbar fibromyositis with dorsolumbar scoliosis, and a 10 percent evaluation for residuals of a fractured left tibia. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Chronic sinusitis is not shown to have manifested during service and no post-service evidence confirms the existence of chronic sinusitis. 3. Recently acquired service medical records confirm that in service, the veteran sustained a fracture of the left tibia, and developed dorsolumbar fibromyositis with dorsolumbar scoliosis secondary to left leg shortening as a result of the injury. 4. At the time of the receipt of the veteran's claim on July 30, 1968, the VA was in constructive receipt of the service medical records. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for chronic sinusitis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991) 2. The requirements for an effective date, effective July 30, 1968, for the assignment of a 20 percent evaluation for dorsolumbar fibromyositis with dorsolumbar scoliosis, and for a 10 percent evaluation for residuals of a fractured left tibia have been met. 38 U.S.C.A. §§ 1155, 5110(b)(2), 5107 (West 1991); 38 C.F.R. §§ 3.400(q)(2) (1994), 4.71a, Diagnostic Codes 5295-5021, 5262, 5275, (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except when otherwise provided by the Secretary, in accordance with the provisions of this title, 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). The Court of Veterans Appeals (Court) has provided that 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 38 U.S.C.A. § 7104(a). Gilbert v. Derwinski, 1 Vet.App. 49 (1990); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by evidence. The VA benefit system requires more than just an allegation; a claimant must submit supporting evidence and the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The veteran's obligation to present a well-grounded or plausible claim requires that evidence of medical causality or other evidence in support of the claim be presented. Grivois v. Brown, 6 Vet.App. 136 (1994). A claimant cannot meet this burden imposed by § 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute sufficient evidence to render a claim well grounded under § 5107(a). Sinusitis Service medical records contain no complaints, findings or diagnosis of chronic sinusitis at any time during service. While the veteran contends that service medical records from Korea are not contained in the claims folder, the veteran's medical examination for separation from service notes that his sinuses were normal and no sinus abnormality was noted in the examination. In testimony at both the June and October 1992 personal hearings the veteran indicated that he was treated for sinus problems in Korea associated with colds and the harsh weather conditions shown to have existed during Korean service. He stated he could not recall whether health care providers in Korea told him he had a chronic sinus condition. He indicated that he had been informed subsequent to service that he had a chronic sinus disorder some 10, 12 or 15 years prior to the hearing. However, he has submitted no clinical evidence corroborating his report of chronic sinusitis and a report of the December 1991 VA examination indicated that the veteran's sinuses were clear and no sinus disorder was either complained or referred to during the examination. It is noted that no claim for service connection for a chronic sinus disorder was included in the veteran's initial August 1968 claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131 (West 1991). For the showing of a 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. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic. 38 C.F.R. § 3.303(b) (1994). Regulations also provide that service connection may be granted any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Because of the complete absence of clinical evidence indicating that the veteran ever manifested a chronic sinus disorder, during service or at any time thereafter, he has failed to carry his initial burden of proof sufficient to justify a belief by a fair and impartial individual that his claim is plausible. Therefore, the claim is not well grounded. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Earlier Effective Date On July 30, 1968, approximately 10 years after he was separated from service, the veteran's initial application for service connection for the residuals of a left leg fracture which occurred during service, was received. The evidence on file shows that the RO began development of this claim by requesting copies of the veteran's service medical records and by scheduling the veteran for a physical examination. A VA Form 21-2507, Request for Physical Examination, indicated that the veteran failed to appear for the scheduled examination. In January 1969, the RO posted a notice to the veteran at this same address indicating that his claim for service connection had been denied. The form also stated no further action would be taken on his claim unless he informed the RO of his willingness to report for an examination by signing the notification and by returning it to the RO. The veteran thereafter took no action on this claim until his application to reopen was received by the RO in August 1991. During testimony at the RO in hearings conducted in both June and October 1992, the veteran indicated that he could not recall whether he ever received notice of the examination or whether he had ever received notice that his claim had been denied because of his failure to report for the examination. He testified that he had resided at the address contained in the initial VA notifications of 1968 and 1969, from 1966 until the present time. He indicated that in speaking with VA personnel he had been told that his service medical records were not presently on file at the RO and that no action would be taken until those records could be secured and reviewed. He said he felt there was little he could do until those records were located and that this was the reason that he did not follow up on his initial claim filed August 1968. The veteran asserts that the left leg fracture was clearly shown to have occurred during service and that a VA examination for service connection for the residuals of the fracture was not necessary prior to an award of service connection. Following the veteran's August 1991 application to reopen his claim, and his examination by VA medical personnel in December 1991, the RO granted service connection by a rating decision in January 1992 for the residuals of a fractured left tibia with a 10 percent evaluation, under 38 C.F.R. § 4.71a, Diagnostic Code 5262. Additionally, the RO granted service connection for dorsolumbar fibromyositis with dorsolumbar scoliosis, with a 20 percent evaluation, based upon the finding by the VA examiner that the veteran's back disorder was directly related to the residuals of the fractured left leg which had also resulted in the left leg being two centimeters shorter than the right. 38 C.F.R. § 4.71a, Diagnostic Codes 5295-5021. Finally, the RO granted service connection for the left leg length difference with a noncompensable evaluation based upon the degree of actual shortening, 38 C.F.R. § 4.71a, Diagnostic Code 5275. Reference is made to 38 C.F.R. § 3.400 (q)(2): Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. (q) New and material evidence (§ 3.156) (2) Service department records. To agree with evaluation (since it is considered these records were lost or mislaid) or date of receipt of claim on which prior evaluation was made, whichever is later, subject to rules on original claims filed within 1 year after separation from service. 38 C.F.R. § 3.400(q)(2). Because the veteran's claim was not filed within one year after his separation from service, the effective date for an award of service connection must be the date of receipt of the claim or the date the entitlement arose, whichever is later. The recently acquired service medical records clearly reveal that the veteran sustained a fracture of the left proximal third of the tibia. In the present case, since the records in question are military personnel records of which the VA has constructive knowledge and possession, these records are not "new" evidence added to the file. Applying 38 C.F.R. § 3.400(q)(2) to the facts at hand, it is clear that an effective date of July 30, 1968, the date of the receipt of the original claim, should be assigned. ORDER The appeal for service connection for chronic sinusitis is dismissed, and an effective date, of July 30, 1968, for the assignment of 20 percent evaluation for dorsolumbar fibromyositis with dorsolumbar scoliosis, and a 10 percent evaluation for residuals of a fractured left tibia is granted, subject to the law and regulation governing the criteria for an award of monetary benefits. RENÉE M. PELLETIER 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.