Citation Nr: 0007454 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-08 497 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a claimed disability manifested by vertigo. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The veteran served on active duty from July 1948 to June 1952. This appeal originally came before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision of the RO. The veteran testified at a personal hearing at the RO in May 1997. The Board remanded the case in February 1999 for additional development. The Board notes that the veteran has withdrawn his claim of service connection for hearing loss in March 1997, as indicated on VA Form 9. FINDING OF FACT No competent evidence has been submitted to show that the veteran has current disability manifested by vertigo due to disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW The veteran has not presented evidence of a well-grounded claim of service connection for a disability manifested by vertigo. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of a well-grounded claim; that is, one which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, the Board finds that his claim is not well grounded. Service connection may be granted for a disability resulting from a disease or injury which was incurred or aggravated during active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). The regulations also provide that service connection may be granted for any 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) (1999). Statutory law as enacted by the Congress also charges a claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). This threshold requirement is critical since the duty to assist a veteran with the development of facts does not arise until the veteran has presented evidence of a well- grounded claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect the claim is "plausible" or "possible" is required. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claimant therefore cannot meet this burden 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 evidence to render a claim well grounded under § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). According to the Court in Caluza, a well-grounded claim of service connection requires competent evidence of the following: i) current disability (through medical diagnosis); ii) incurrence or aggravation of a disease or injury in service (through lay or medical evidence) and; iii) a nexus between the in-service injury or disease and the current disability (through medical evidence). Caluza v. Brown, 7 Vet. App. at 506. Moreover, the truthfulness of evidence offered by the veteran and his representative is presumed in determining whether or not a claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court held in Savage v. Gober, 10 Vet. App. 488 (1997), that 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 or during an applicable presumption period and still has such a 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 on the basis of 38 C.F.R. § 3.303(b) if the condition is demonstrated during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. After a full review of the record, the Board concludes that a well-grounded claim of service connection for a disability manifested by vertigo has not be presented. The veteran believes that he has vertigo as the result of an injury to the inner ears in service. He testified that he suffered this injury while working near five inch guns aboard ship during active service. Reportedly, he received outpatient treatment for complaints of ringing in the ears, headaches and earaches during service, but was not hospitalized. He has contended that the service medical records are incorrect in not showing such treatment. However, a careful review of the veteran's service medical records shows that there is no medical evidence showing he had vertigo or the claimed injury during service. The evidence includes postservice private outpatient records dated from 1979 to 1998 which show complaints and diagnoses of vertigo. No competent evidence has been submitted relating the demonstrated vertigo to any disease or injury in service. While the veteran has testified that both Dr. Woodcock and Dr. Labusohr have told him that vertigo was due to inner ear damage, the records received from Dr. Woodcock do not relate the onset of the vertigo to the claimed injury in service. In a February 1996 statement, the veteran indicated that the records of Dr. Labusohr were not available. Hence, absent medical evidence establishing a nexus between current disability and service, a well-grounded claim has not been presented. ORDER Service connection for a disability manifested by vertigo is denied, as a well-grounded claim has not been presented. STEPHEN L. WILKINS Member, Board of Veterans' Appeals