Citation Nr: 0006896	
Decision Date: 03/14/00    Archive Date: 03/17/00

DOCKET NO.  96-17 166	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for residuals of a back 
injury.

2.  Entitlement to service connection for headaches.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. Yates, Associate Counsel



INTRODUCTION

The appellant served on active duty from January 1955 to 
November 1958.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 1994 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
New Orleans, Louisiana.  That rating decision, in pertinent 
part, denied service connection for residuals of a back 
injury and headaches.

The case was previously before the Board in July 1998, when 
it was remanded for additional development.  The requested 
development has been completed.  The Board now proceeds with 
its review of the appeal.


FINDINGS OF FACT

1.  The RO has obtained all relevant evidence necessary for 
an equitable disposition of the veteran's appeal.

2.  There is no competent medical evidence of a chronic back 
injury or headache disorder having been incurred in or 
aggravated during service.  

3.  There is no post service medical evidence showing 
continuity of symptomatology associated with any inservice 
chronic back injury or headache disorder.

4.  The first post service complaint of back pain or 
headaches was dated in March 1993, over 34 years after the 
veteran's discharge from the service.

5.  There is no medical opinion, or other competent evidence, 
linking the veteran's current back disorder or headache 
disorder to his active duty military service or to an injury 
incurred during his active military service.


CONCLUSIONS OF LAW

1.  Residuals of a back injury were not incurred in, or 
aggravated by, active military service. 38 U.S.C.A. 
§§ 101(16), 101(24), 1110, 1131 (West 1991); 38 C.F.R. 
§§ 3.303, 3.304 (1999).

2.  A headache disorder was not incurred in, or aggravated 
by, active military service. 38 U.S.C.A. §§ 101(16), 101(24), 
1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Preliminary Considerations

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 
1991); 38 C.F.R. §§ 3.303, 3.304 (1999).

Service connection may be established for a current 
disability in several ways, including on a "direct" basis, on 
the basis of "aggravation," and on a "presumptive" basis.  
38 U.S.C.A. §§ 101(16), 1110, 1131, 1153 (West 1991); 38 
C.F.R. §§ 3.303, 3.304(a), (b), (c), 3.306(a), (b), 3.307, 
3.309 (1999).

Direct service connection may be established for a disability 
resulting from diseases or injuries which are clearly present 
in service or for a disease diagnosed after discharge from 
service, when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(a), (b), (d) (1999).  
Establishing direct service connection for a disability which 
has not been clearly shown in service requires the existence 
of a current disability and a relationship or connection 
between that disability and a disease contracted or an injury 
sustained during service.  38 U.S.C.A. § 1131 (West 1991); 38 
C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 
542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 
(1992).

The law provides that "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) (West 1991).  
Establishing a well-grounded claim for service connection for 
a particular disability requires more than an allegation that 
the disability had its onset in service or is service 
connected; it requires evidence relevant to the requirements 
for service connection and of sufficient weight to make the 
claim plausible and capable of substantiation.  See Franko v. 
Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 
Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 
78, 81 (1990).

The three elements of a "well grounded" claim are: (1) 
evidence of a current disability as provided by a medical 
diagnosis; (2) evidence of incurrence or aggravation of a 
disease or injury in service as provided by either lay or 
medical evidence, as the situation dictates; and, (3) a 
nexus, or link, between the inservice disease or injury and 
the current disability as provided by competent medical 
evidence.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999).  
Alternatively, the third Caluza element can be satisfied 
under 38 CFR 3.303(b) (1999) by evidence of continuity of 
symptomatology and medical or, in certain circumstances, lay 
evidence of a nexus between the present disability and the 
symptomatology.  See Savage v. Gober, 10 Vet. App. 488, 495 
(1997).

II.  Factual Background

The RO has retrieved the veteran's service medical records 
and they appear to be complete.  A review of the veteran's 
Form DD 214 reveals that he served on active duty in the 
United States Air Force from January 1955 to November 1958.  
The report of the veteran's entrance examination, dated in 
January 1955, shows diagnoses of deviated septum, mild, 
right, and third degree pes planus, asymptomatic, with 
pronation.  The veteran's service medical records reveal 
treatment for a variety of conditions.  An inservice medical 
treatment report, dated in December 1956, notes complaints of 
back trouble.  In September 1957, the veteran sought 
treatment for a sore throat, headaches and weakness.  
Physical examination revealed his chest to be clear.  A 
November 1957 treatment report notes the veteran's complaints 
of painful back muscles.  No follow-up treatment was 
indicated.

In January 1958, the veteran was injured by an exploding jet 
airplane tire.  A hospitalization report, dated in January 
1958, notes that he suffered a compound comminuted fracture 
of the left olecranon process and an oblique fracture of the 
right, 5th metacarpal (small finger).  The report also notes 
that the veteran was treated for lacerations to the left 
forehead and chin, right side.  In November 1958, the 
veteran's discharge examination was conducted and the report 
of this examination shows no complaints or diagnoses of 
headaches or a back disorder.

In November 1958, the veteran filed an application for 
compensation or pension, VA Form 8-526, seeking entitlement 
to service connection for "residuals of broken elbow, 
left."  The form contains no reference to a back disorder or 
headaches.

In May 1959, a VA general physical examination was conducted.  
The report of this examination notes the veteran's history of 
injuring his left elbow and his right hand during service.  
No complaints relating to or findings noting the existence of 
a back disorder or headaches were indicated.  

Medical treatment reports, dated August 1988 to May 1993, 
were obtained from the VA medical center in New Orleans, 
Louisiana.  A treatment report, dated in January 1989, notes 
that the veteran had no complaints and was "doing fine."  A 
May 1993 treatment report notes the veteran's complaints of 
frequent headaches.  The report concludes with a diagnostic 
impression of probable sleep apnea.

A treatment report, dated in November 1993, notes the 
veteran's complaints of back pain and headaches, 
"sinus/constant."  In addressing his medical history, the 
report notes that he previously "fell off horse" and 
"accid. in service."  It also noted that the veteran was 
treated for a gunshot wound in the left chest and arm in 
1961.

A medical treatment report, dated in May 1994, was submitted 
by B. Vasconcellos, D.C.  Dr. Vasconcellos noted that she had 
been treating the veteran for low back pain since November 
1993.  X-ray examination of the back revealed an impression 
of left lumbar scoliosis; right flexion of L2 on L3 and L3 on 
L4; left flexion of L4 on L5; right lateral spurring of L4, 
hypertrophic degenerative changes of L5; and low left ilium.  
Dr. Vasconcellos also noted "that this has been a problem of 
long standing duration."  

In February 1996, the veteran filed his substantive appeal, 
VA Form 9.  He alleged that his back and headache disorders 
resulted from the inservice tire explosion.  Specifically, he 
stated that "I was slam[m]ed backwards at tremendous force.  
I hit a wall behind me, bounced off it and hit another wall.  
Evidently the damage done developed over a period of time.  I 
live with a constant back ache."

In September 1997, an opinion letter was received from M. 
Stelzer, M.D.  In his letter, Dr. Stelzer indicated that his 
clinic was treating the veteran for headaches and back pain.  
He also stated:

It was reported to me that while in the 
air force [the veteran] was severely 
injured in 1958 in a tire explosion in 
which he literally bounced off of two 
walls.

It is my professional opinion that [the 
veteran's] current condition, although 
not unique to severe physical trauma, is 
due in part to his earlier injury that 
occurred while in the air force in 1958.  
I believe that if [the veteran] had not 
suffered the above referenced injury in 
1958 that it would be far less likely 
that he would suffer from his current 
condition for which he is receiving 
treatment today.

In October 1998, following the Board's remand herein, the 
veteran submitted a statement indicating that he had 
attempted to contact all of the doctors who had treated him 
for a back disorder or headaches since his discharge from the 
service.  He noted that "most were either no longer in 
practice or dead."  Also enclosed with his statement were 
the replies he had received.  In particular was a treatment 
summary report from T. Yang, M.D.  In his report, Dr. Yang 
indicated that he treated the veteran from April to May 1993.  
He further noted that the veteran "was initially examined 
and treated as an out-patient for the chronic, recurring 
symptom of low back pain, hand and elbow pain.  I 
administered transcutaneous electro-nerve stimulation, using 
fine needle electrodes."  

In addition, the veteran submitted a medical treatment 
summary report from H. Karas, M.D.  Dr. Karas noted that he 
had treated the veteran from August to September 1995 for 
sinus, headaches, itching skin, vertigo, and low back pain.  
Dr. Karas also noted that the veteran "has a number of 
spinal segmental dysfunctions."  

In February 1998, a treatment summary statement was submitted 
by N. Magpac, M.D., who Dr. Magpac noted that she had treated 
the veteran one time in August 1993 for degenerative joint 
disease of the lumbar spine.  

In November 1998, the veteran submitted X-ray films of his 
back, performed in August 1995, that he obtained from the 
Metairie Chiropractor Clinic.  In January 1999, the X-ray 
films were reviewed by the Chief of Radiology, VA medical 
clinic in New Orleans, Louisiana.  In his report, the Chief 
of Radiology indicated that the X-rays were not taken at the 
correct position and were "totally inadequate for 
interpretation and useless for evaluation."

In February 1999, the veteran submitted a letter in support 
of his claim.  In his letter, the veteran indicated that he 
had informed Dr. Seltzer that he "had never been injured 
except for my accident while in the U.S.A.F. and that 
couldn't be the cause since I did not start to have problems 
until two years later."  He also noted that "since I never 
talked to other doctors about how it happened any reports you 
receive from other doctors will not mention my accident in 
the military because it never came up with them."  In 
addressing his claim for service connection for headaches, 
the veteran stated "[m]y nose was broken about three years 
before I joined the Air Force.  However, my nose was broken 
again in the accident.  My whole face was swollen and my nose 
hurt tremendously."

Medical treatment reports, dated March 1999 to June 1999, 
were retrieved from Charity Hospital.  A review of these 
records was negative for treatment for or diagnoses of 
headaches or a back disorder.  

III.  Analysis

Initially, the Board finds that the veteran's claims for 
service connection for residuals of a back injury and for a 
headache disorder are "well grounded" within the meaning of 
38 U.S.C.A. § 5107(a) (West 1991).  That is, he has presented 
claims which are plausible. See Arms v. West, 12 Vet. App. 
188, 195 (1999) (noting that generally "only the evidence in 
support of the claim is to be considered and generally a 
presumption of credibility attaches to that evidence in order 
to decide whether or not any VA claimant has sustained the 
claimant's burden of submitting a well-grounded claim under 
section 5107(a)" (first emphasis added)).  All relevant facts 
have been properly developed and no further assistance to the 
appellant is required to comply with the duty to assist 
mandated by 38 U.S.C.A. § 5107(a).

Review of the appellant's claims requires the Board to 
provide a written statement of the reasons or bases for its 
findings and conclusions on material issues of fact and law.  
38 U.S.C.A. § 7104(d)(1) (West 1991).  The statement must be 
adequate to enable a claimant to understand the precise basis 
for the Board's decision, as well as to facilitate review by 
the United States Court of Appeals for Veterans Claims 
(Court).  See Simon v. Derwinski, 2 Vet. App. 621, 622 
(1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992).  To 
comply with this requirement, the Board must analyze the 
credibility and probative value of the evidence, account for 
evidence that it finds to be persuasive or unpersuasive, and 
provide reasons for rejecting any evidence favorable to the 
appellant.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 
Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  
Furthermore, as the Court has pointed out, the Board may not 
base a decision on its own unsubstantiated medical 
conclusions but, rather, may reach a medical conclusion only 
on the basis of independent medical evidence in the record or 
adequate quotation from recognized medical treatises.  See 
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

Moreover, the Board has the duty to assess the credibility 
and weight to be given to the evidence.  See Madden v. Gober, 
125 F.3d 1477 (Fed.Cir.1997) and cases cited therein.  Once 
the evidence is assembled, the Secretary is responsible for 
determining whether the preponderance of the evidence is 
against the claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 
55 (1990).  If so, the claim is denied; if the evidence is in 
support of the claim or is in equal balance, the claim is 
allowed.  See also Alemany v. Brown, 9 Vet. App. 518, 519 
(1996).

A.  Residuals of Back Injury

In this case, the veteran contends that his back was injured 
by an exploding tire in January 1958.  The determinative 
issues presented by this claim are: (1) whether the veteran 
incurred, or aggravated, a chronic back disorder during 
service; (2) whether he has a current disability; and, if so, 
(3) whether the current disability is etiologically related 
to his active military service.  As the veteran's alleged 
inservice back injuries were not sustained in combat, the 
presumption under 38 U.S.C.A. §1154 does not apply.

After a thorough review of the veteran's claim file, the 
Board concludes that the medical evidence of record does not 
show that a chronic back disorder was incurred during a 
period of active duty service. See 38 C.F.R. § 3.303(b) 
(1999).  Although the veteran was injured by an exploding jet 
tire in January 1958, there is no indication that this 
incident resulted in a chronic back disorder.  The inservice 
medical treatment reports following this incident are silent 
as to any complaints of a back injury.  In November 1958, the 
veteran's discharge examination was conducted.  The report of 
this examination reveals no complaints or diagnosis of a back 
disorder.  In November 1958, the veteran filed an application 
for compensation or pension, and no reference to a back 
disorder was noted on his application form.  The report of a 
post service VA physical examination, performed in May 1959, 
notes the veteran's narrative history of injuring his left 
elbow and his right hand during service.  No complaints 
relating to or findings noting the existence of a back 
disorder were indicated.  The first post service medical 
evidence of record noting any complaint of or treatment for a 
back disorder is dated in 1993, 34 years after the veteran's 
discharge from the service.  

The veteran has failed to establish the required nexus 
between his current back disorder and his active duty 
military service.  See Caluza, 7 Vet. App. at 506, Dean v. 
Brown, 8 Vet. App. 449, 455 (1995), Slater v. Brown, 9 Vet. 
App. 240 (1996).  During the course of this appeal, the 
veteran submitted statements alleging that his current back 
disorder is the result of injuries incurred during his active 
duty service.  The statements given by the veteran are not 
competent evidence to establish the etiology of his current 
disorder.  Medical diagnosis and causation involve questions 
that are beyond the range of common experience and common 
knowledge and require the special knowledge and experience of 
a trained physician.  Because he does not have medical 
expertise, the veteran is not competent to make a 
determination that his current back disorder is the result of 
an inservice injury over three decades ago. See Espiritu v. 
Derwinski, 2 Vet. App. 492, at 495 (1992). 

In support of his claim, the veteran submitted an opinion 
letter, dated in September 1997, from M. Stelzer, M.D.  In 
his letter, Dr. Stelzer noted that the veteran "reported to 
me that while in the air force [the veteran] was severely 
injured in 1958 in a tire explosion in which he literally 
bounced off of two walls."  Based upon this account, Dr. 
Stelzer concluded that the veteran's "current condition, 
although not unique to severe physical trauma, is due in part 
to his earlier injury that occurred while in the air force in 
1958.  I believe that if [the veteran] had not suffered the 
above referenced injury in 1958 that it would be far less 
likely that he would suffer from his current condition for 
which he is receiving treatment today."

The probative value of a medical opinion is generally based 
on the scope of the examination or review, as well as the 
relative merits of the expert's qualifications and analytical 
findings.  See Guerrieri v. Brown, 4 Vet. App. 467 (1993).  
Its weight may be less if the examiner fails to explain the 
basis for an opinion, or treated the veteran briefly or for 
unrelated conditions.  See Sklar v. Brown, 5 Vet. App. 140 
(1993).  In LeShore v. Brown, 8 Vet. App. 406 (1995), the 
Court stated that evidence which is simply information 
recorded by a medical examiner, enhanced by any additional 
medical comment by that examiner, does not constitute 
"competent medical evidence."  See also Robinette v. Brown, 
8 Vet. App. 69 (1995) ("Bare transcription of a lay history 
is not transformed into 'competent medical evidence' merely 
because the transcriber happens to be a medical 
professional.").  

The Board finds that Dr. Stelzer's opinion fails to take into 
account the complete facts of record.  In fact, the opinion 
offered by Dr. Stelzer appears to rely solely upon the 
veteran's own oral history of an inservice back injury 
occurring over three decades ago.  There is no indication 
that Dr. Stelzer had reviewed or considered any objective 
evidence of the veteran's inservice or post service medical 
treatment.  Moreover, a statement submitted by the veteran, 
received in February 1999, noted that he told Dr. Stelzer 
that he "had never been injured except for my accident while 
in the U.S.A.F." However, a treatment report, dated November 
1993, notes the veteran's prior history of injuries, 
including having "fell off horse" and treatment for a post 
service gunshot wound in the left chest and arm in 1961.  
Based upon the failure of this opinion to take into account 
the complete facts of record, and the absence of any clinical 
data or other rationale to support its finding, the Board 
concludes that this opinion is not persuasive evidence 
linking the veteran's current back disorder to his inservice 
injury in January 1958. See Bloom v. West 12 Vet. App. 185 
(1999);  Swann v. Brown, 5 Vet. App. 229, 233 (1993); Wilson 
v. Derwinski, 2 Vet. App. 614, 618 (1992).  

In view of the foregoing, the Board concludes that the 
preponderance of the evidence is against the veteran's claim 
for service connection for residuals of a back injury. 
38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999).  
Because the evidence is not evenly balanced, the rule 
affording the veteran the benefit of the doubt does not 
apply.  38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 
(1999); Gilbert v. Derwinski, 1 Vet. App. at 55.

B.  Headaches

In this case, the veteran contends that he currently has a 
headache disorder as a result of an inservice injury in 
January 1958.  The determinative issues presented by the 
claim are: (1) whether the veteran incurred or aggravated a 
chronic headache disorder during service; (2) whether he has 
a current disability; and, if so, (3) whether the current 
disability is etiologically related to his active duty 
service.  The Board concludes that medical evidence is needed 
to lend plausible support for all of the issues presented by 
this case because they involve questions of medical fact 
requiring medical knowledge or training for their resolution.  
Caluza v. Brown, 7 Vet. App. at 506; see also Layno v. Brown, 
6 Vet. App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet. 
App. 492, 494-95 (1992).  

After a thorough review of the veteran's claims file, the 
Board concludes that the medical evidence of record does not 
show that the veteran incurred a chronic headache disorder 
during service.  A review of the veteran's service medical 
records revealed a single complaint of headaches in September 
1957, which was prior to the inservice tire explosion 
occurring in January 1958.  Thereafter, the veteran's service 
medical records are silent as to treatment for headaches.  
The veteran's discharge examination, performed in November 
1958, revealed no complaints or diagnosis of a headache 
disorder.  The veteran's application for compensation or 
pension, received in November 1958, contained no reference to 
a headaches.  The report of a post service VA general 
physical examination, performed in May 1959, also contained 
no complaints relating to or findings noting the existence of 
a headache disorder during service.  The first post service 
medical evidence of record noting any complaint of or 
treatment for a headache disorder is dated March 1993, 34 
years after the veteran's discharge from the service.  
Accordingly, the Board concludes that the evidence of record 
does not show a chronic headache disorder having been 
incurred during the veteran's active duty service.

The veteran has also failed to establish the required nexus 
between his current headache disorder and his active duty 
military service.  See Caluza, 7 Vet. App. at 506, Dean v. 
Brown, 8 Vet. App. 449, 455 (1995), Slater v. Brown, 9 Vet. 
App. 240 (1996).  The veteran's sworn testimony and other 
statements are not competent evidence to establish the 
etiology of his current disorder.  Medical diagnosis and 
causation involve questions that are beyond the range of 
common experience and common knowledge and require the 
special knowledge and experience of a trained physician.  
Without medical expertise, the veteran is not competent to 
make a determination that this condition over three decades 
ago. See Espiritu, 2 Vet. App. at 495; Grottveit, 5 Vet. App. 
at 93.  The Board also finds that, based on the failure of 
Dr. Stelzer's opinion of September 1997 to take into account 
the complete facts of record and the absence of any clinical 
data or other rationale to support his opinion, his opinion 
is not persuasive evidence linking the veteran's current 
headaches to his inservice injury in January 1958. See Bloom 
v. West 12 Vet. App. 185 (1999);  Swann v. Brown, 5 Vet. App. 
229, 233 (1993); Wilson v. Derwinski, 2 Vet. App. 614, 618 
(1992).  

In view of the foregoing, the Board concludes that the 
preponderance of the evidence is against the veteran's claim 
for service connection for a chronic headache disorder. 
38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999).  
Because the evidence is not evenly balanced, the rule 
affording the veteran the benefit of the doubt does not 
apply.  38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 
(1999); Gilbert v. Derwinski, 1 Vet. App. at 55.

In reaching this decision, the Board acknowledges that it is 
possible that additional evidence may exist which could be 
helpful to the veteran's claim.  Following the Board's remand 
herein, the RO requested information and releases from the 
veteran concerning any treatment he has received since his 
discharge from the service for a back or headache disorder.  
Although given 60 days to complete this task, no forms were 
forthcoming.  Rather, it appears that the veteran chose to 
obtain this medical evidence on his own.  In November 1998, 
the RO issued a Supplemental Statement of the Case reminding 
the veteran and his representative that "no reply to this 
request for evidence has been received by our office.  It 
should be noted that the veteran attempted to obtain medical 
evidence on his own and did not receive a reply to several 
requests."  Thereafter, the veteran submitted two release 
forms, VA Form 21-4142, and the RO obtained those records 
referred to therein.  "[T]he duty to assist is not always a 
one-way street.  If a veteran wishes help, he cannot 
passively wait for it in those circumstances where he may or 
should have information that is essential in obtaining the 
putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 
(1991).  Under the circumstances presented in this case, the 
Board concludes that the duty to assist the veteran had been 
fulfilled.  


ORDER

Entitlement to service connection for residuals of a back 
injury disease is denied.

Entitlement to service connection for headaches is denied.



		
	BETTINA S. CALLAWAY
	Member, Board of Veterans' Appeals