BVA9505209 DOCKET NO. 93-09 994 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for an upper back disorder. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from January 1957 to December 1959. This appeal arises from a January 1992 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to service connection, noting that he had presented no evidence of chronic disabilities. The veteran testified at a personal hearing in May 1992. In December 1992, the hearing officer issued a decision which confirmed and continued the denials of the benefits sought on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that service connection should be granted for his upper and lower back and right shoulder disabilities because they are directly related to his period of service. He states that he fell during basic training and that these areas have bothered him ever since. Therefore, he believes that service connection should be allowed. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims are well grounded. FINDINGS OF FACT The veteran is not shown by competent medical evidence to suffer from chronic disabilities of the upper and lower back and right shoulder, to include arthritis, that can be related to his period of service. CONCLUSION OF LAW The appellant has not submitted evidence of well grounded claims. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, ones which are plausible. If he has not presented well grounded claims, 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) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As will be explained below, it is found that his claims are not well grounded. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran has served for 90 days or more during a period of war, or peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). 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 or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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) (1994). A review of the service medical records in this case reveals that the veteran's spine and shoulder were normal during the entrance examination performed in July 1957. In February 1958, he presented with complaints of trouble with his back. Right paralumbar muscle spasm was present. He was given treatments with heat; by the last treatment, dated on February 24, he stated that he was still experiencing pain. An x-ray taken during February noted that the thoracic and lumbar spines, to include the lumbosacral and sacroiliac joints, were normal. Incidentally, a calcified node anterior to the left lateral portion of T-12 was referred to. In March 1958, he was still complaining of pain in the back. There was no limitation of motion and no abnormal physical findings were noted. The separation examination conducted in July 1959 made no reference to any further complaints about his back. The service medical records contained no mention of any problem with either his upper back or his right shoulder. In November 1990, the veteran presented at the VA outpatient treatment clinic with complaints of back pain. At that time, he indicated that he had not received any outpatient or inpatient treatment for these complaints. Forward flexion was noted to be to 90 degrees. He complained of low back pain, with numbness and tingling into the leg. He was treated with heat therapy, electric stimulation, massages and pain medication. This treatment continued throughout 1991 and 1992. The veteran testified at a personal hearing in May 1992. He stated that he had not sought treatment for his back injury in service because of his drill instructor. He asserted that he had sought treatment for these conditions within one year of his discharge, but that he could not recall the name or exact address of the physician. He said he was told at that time that he had a back strain. For the last eight to ten years the pain and numbness have gotten worse. He stated that even walking will cause pain. When he was seen at the VA, he commented that he was seen by a specialist who told him that he had arthritis and that there was nothing that could be done about it. This doctor also allegedly told the veteran that this arthritis had been present for the last 30 years. He reiterated that the pain begins just below the right shoulder blade and travels down the right side to the low back. Additional VA outpatient treatment records indicated that the veteran continued to receive treatment for low back and shoulder pain until September 1992. In July 1992, an x-ray report noted the presence of hypertrophic changes at L5-S1. His last treatment in September indicated that he was not experiencing pain in the right shoulder as often, and that he rarely had pain in the low back. Initially, as noted above, the law pertaining to direct service connection clearly requires that there must exist a disability that resulted from disease or injury incurred in service. 38 U.S.C.A. § 1131 (West 1991). The law referring to presumptive service connection requires that certain disabilities, to include arthritis, must manifest themselves to a compensable degree within one year of separation to be service-connected. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Finally, service connection for a chronic disease, established through chronicity of symptomatology, may be proven. There is no objective evidence of record to show that the veteran suffers from chronic disabilities of the low back, upper back or right shoulder. The evidence revealed that there were no complaints in service referable to the upper back or right shoulder. These records do show that he did complain of low back pain in 1958. However, this appeared to be acute and transitory in nature. This is supported by the evidence, which showed that he sought no further treatment for the low back between March 1958 and his discharge more than a year later, in July 1959. Moreover, the separation examination of July 1959 made no reference to any low back problems. This, coupled with the fact that there is no evidence of a disabling low back problem until 1990, argues in favor of a finding that any complaints in service resolved completely by his discharge. While the record indicates that he currently exhibits hypertrophic changes in the low back, there is no indication that this degenerative process was present to a compensable degree within one year of his separation from active duty. He asserted at his personal hearing that he had sought treatment during this time frame; however, he was unable to present any objective evidence illustrating any such treatment, nor was he able to supply the name or address of the physician that reportedly provided this treatment. Interestingly, when he had been seen by VA in November 1990, he had indicated that he not sought any type of treatment for his complaints. The United States Court of Veterans Appeals (Court) has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence or diagnosis of a current disorder that can be linked to the period of service. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); and Rabideau v. Derwinski, 2 Vet.App. 141 (1992). As noted above, there is no competent medical evidence to link the veteran's current disabilities to any event of service origin. While he stated at his personal hearing that a VA specialist told him that such a connection existed, the record does not substantiate this claim. No such opinion is part of the record. Furthermore, the veteran, as a layman, is not qualified to render an opinion as to the etiology of his disabilities. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, as the appellant's claims for service connection for these disorders are not well grounded, they must be dismissed. To do otherwise and handle the case on the merits would be inappropriate because it would require the appellant in the future to overcome the inertia of earlier, adversely adjudicated claims. See Grottveit, at 93. ORDER The appeal of the claims for service connection for low back, upper back and right shoulder disabilities are dismissed, and the January 1992 rating decision which denied these claims on the merits is vacated. KENNETH R. ANDREWS, JR. 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.