Citation Nr: 0005134 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-33 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on active duty from May 1943 to November 1945. This matter is currently before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. On appeal the veteran appears to raise the issues of entitlement to service connection for cervical and thoracic disorders. These issues, however, are not currently developed or certified for appellate review. Accordingly, they are referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The veteran has not presented a claim of entitlement to service connection for a right hip disorder that is plausible or capable of substantiation. 2. The claim of entitlement to service connection for a back disorder is plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a right hip disorder is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a back disorder is well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for right hip and back disorders. The legal question to be answered initially is whether the veteran has presented evidence of well- grounded claims; that is, claims that are plausible. If he has not presented well-grounded claims, his appeal must fail with respect to these claims and there is no duty to assist him further in the development of these claims. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that the veteran's claim for service connection for a right hip disorder is not well grounded, and that the claim for a back disorder is well grounded. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Further, arthritis may be presumed to have been incurred during service if it becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claims for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. If chronicity 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 noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). A. Not Well-Grounded Claim The service medical records show that in December 1943, the veteran complained of right hip pain after falling off a truck and injuring the joint. X-ray examination was negative. The diagnosis was a right hip contusion. The appellant returned to duty five days after the injury. The remainder of the service medical records, including the November 1945 discharge examination, are negative for any findings, treatment or diagnosis of a right hip disorder. Post-service medical records reveal that the veteran was treated in February 1967 at Clay County Hospital for a right hip sprain. A history of an injury several weeks earlier was noted, however. Moreover, no examiner has linked this disorder with the appellant's active duty service. Further, the appellant has not submitted any competent evidence otherwise suggesting such a nexus. While James E. Carter, M.D., in September 1997 and October 1998 private medical statements, noted a history of the veteran having injured his hip in the service, such evidence is simply information recorded by a medical examiner because it is unenhanced by any additional medical comment, and hence it does not constitute competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Indeed, the only evidence presented by the veteran that tends to show a connection between his right hip disorder and service are his own statements, including his January 2000 hearing testimony. However, his lay assertions of record claiming to relate his disorder to service, are not competent evidence relating a present condition to the appellant's military service. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A well grounded claim requires competent evidence linking the current disability to the veteran's active duty service. In the absence of such evidence the Board finds that the appellant has failed to fulfill his statutory burden of submitting a well grounded claim of entitlement to service connection for a right hip disorder. Under such circumstances this claim is denied as not well grounded. B. Well-Grounded Claim As indicated above, with respect to the veteran's claim for service connection for a back disorder, the Board finds that the veteran has submitted evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). In this respect, the service medical records are negative for any findings, treatment or diagnosis of a back disorder. Postservice, in September 1997 and October 1998 private medical statements, James E. Carter, M.D., indicated that he had treated the veteran for back injuries and lumbar disc disease that began when he had a fall in 1944. At that time, he fell and hit on his lower back and hip. He was reported to have been seen in the early 1940s by Dr. Carter's uncle. Dr. Carter indicated that he had started practicing with his uncle in 1958; that he had access to the chart, history and files concerning the veteran; and that he had knowledge that he had definitely injured his back in the service and was given a "medical discharge" for injuries received at that time. Physical examination revealed marked rigidity of the lumbar spine with scar formation. He had at least five surgeries since his initial injury on the lower lumbar spine. It was Dr. Carter's medical opinion that the veteran's fall, while a member of the U.S. Navy, caused his back problem. In light of Dr. Carter's September 1997 and October 1998 private medical statements, providing a nexus between the current back disorder and service, the Board concludes that the veteran's claim for service connection for this disorder is well grounded. ORDER Entitlement to service connection for a right hip disorder is denied. The claim for service connection for a back disorder is plausible. REMAND In considering the merits of the appellant's claim the Board again observes that the service medical records are negative for any complaints or findings pertaining to this disorder. The record also reflects that the appellant was not issued a medical discharge at separation. While Dr. Carter's statements are sufficient to establish this claim as well grounded, it is well to observe that they are not corroborated by contemporaneously recorded medical records. Moreover, a review of the clinical records which have been added to the claims folder discloses an inconsistent history. In this regard, in an April 1987 letter to the Hartford Insurance Company Arthur Bond, M.D., refers to a back injury sustained in a 1968 accident. Further, an October 1971 Baptist Hospital neurological consultation noted a two year history of back pain following an injury sustained while operating heavy machinery, and a February 1974 physical examination conducted at Baptist Hospital notes a five year, not thirty year, history of back pain, with a history of back surgery beginning in 1971. In light of the foregoing conflicting evidence the Board concludes that further development is in order. Therefore, this case is REMANDED for the following action: 1. The RO should contact the veteran and request that he identify any health care provider who has provided treatment for his back disorder. If VA was the provider of choice, the specific medical center or outpatient clinic utilized must be identified. The RO should specifically request that veteran provide the complete addresses for the Army Corps of Engineers located in Celina, Tennessee, the Hartsville Nuclear Power Plant located in Hartsville, Tennessee, and Carl R. Hampf, M.D., of Baptist Hospital located in Nashville, Tennessee. Following receipt of the veteran's response, the RO should request the veteran's 1948 physical examination report and X-ray studies from the Army Corps of Engineers; his 1977 physical examination report and X-ray studies from the Hartsville Nuclear Power Plant; and the veteran's current medical records from Carl R. Hampf, M.D., of Baptist Hospital in Nashville. 2. After completion of the foregoing the veteran should be afforded a VA orthopedic and neurological examinations, by a board certified orthopedist and a board certified neurologist, to determine the etiology of any back disorder, including arthritis. The veteran's claims folder and a copy of this REMAND, must be made available to and reviewed by the examiner prior to conducting the requested examination. If the examiners determine that the veteran has a back disorder, they must offer an opinion as to whether it is at least as likely as not that this disorder was caused, or aggravated, by the veteran's military service. If the examiners find that any currently diagnosed back disorder is not related to service the examiners must then distinguish their opinion from that offered by Dr. Carter. The complete rationale for each opinion expressed should be set forth in a typewritten report. If the orthopedist and neurologist reach differing conclusions they should meet in an attempt to reconcile their opinions. 3. For the requested examination the appellant must be given adequate notice, to include advising him of the consequences of failure to report for the examinations. If he fails to report for any examination, this fact should be noted in the claims folders and a copy of the scheduling notice should be obtained by the RO and associated with the claims folders. 4. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the reports are deficient in any manner, the RO must implement corrective procedures at once. Upon completion of the above development, the RO should readjudicate the remaining issue on appeal. If the determination remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and be given an opportunity to respond. The purpose of this REMAND is to protect the appellant's right to due process and to fulfill the duty to assist. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). DEREK R. BROWN Member, Board of Veterans' Appeals