Citation Nr: 0001720 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-17 542A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for broken ribs. 2. Entitlement to service connection for headaches, blackouts, and dizziness. 3. Entitlement to service connection for brain concussion. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from June 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 1997 rating decision of the New York, New York Department of Veterans Affairs Regional Office (RO), which denied the veteran's claims of entitlement to service connection for broken ribs, for headaches, blackouts, and dizziness, and for a brain concussion. The veteran submitted a notice of disagreement with that rating decision in July 1997. In January 1998, the RO provided the veteran with a statement of the case. The veteran's substantive appeal was filed subsequently in the same month. A personal hearing was held at the RO in October 1998. In November 1998, the RO issued a supplemental statement of the case to the veteran. FINDINGS OF FACT 1. There is competent evidence of record indicating that the veteran sustained a brain concussion and a contusion of his left chest wall during service. 2. The evidence of record does not make a plausible showing that the veteran has a current medical condition involving headaches, dizziness, and blackouts, or involving residuals of a brain concussion, fractured ribs, or contusion of the left chest wall. 3. The evidence of record does not make a plausible showing that any current medical condition of the veteran is related to the brain concussion or contusion of his left chest wall sustained during service. CONCLUSIONS OF LAW 1. A well-grounded claim of entitlement to service connection for broken ribs has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). 2. A well-grounded claim of entitlement to service connection for headaches, blackouts, and dizziness has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). 3. A well-grounded claim of entitlement to service connection for brain concussion has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background Service medical records show that the veteran was injured on October 2, 1942 when the automobile in which he was riding collided with a bus near Nashville, Tennessee. He was treated at the dispensary from October 2-7, 1942. He did not enter a coma or otherwise lose consciousness. He was given provisional diagnoses of brain concussion, frontal head wound, and contusion of the left chest wall. His left 8th and 9th ribs were taped. On October 7, 1942, the veteran was transferred to the 48th Evacuation Hospital in Murfreesboro, Tennessee. He was diagnosed with a brain concussion. X-rays of the skull and ribs were negative. The veteran was transferred to the Station Hospital at Camp Forrest, Tennessee on October 11, 1942 for observation. His condition on admission was noted to be normal. The report of an examination performed upon him on October 12, 1942 identified no symptoms related to the injuries with which he had been diagnosed. The hospital records indicate that the veteran was found to have "no disease" and was discharged to duty on October 14, 1942. The service medical records contain no documentation that the veteran received further treatment for the injuries diagnosed after the accident or for residuals thereof. The separation examination performed upon the veteran in January 1946 was negative for headaches, dizziness, blackouts, or for other symptoms of neurological or musculoskeletal disorders. However, service medical records indicated that the veteran had had brief outbursts of violence twice in December 1942 after consuming alcohol. The records showed that on these occasions, he was diagnosed with acute alcoholism. After the second incident, which occurred on December 31, 1942, he was admitted to Station Hospital at Camp Gordon, Georgia. From there he was discharged to duty on January 3, 1943. Included in the claims file was a certificate prepared by the veteran's private physician in May 1948 in connection with a May 1948 claim for other alleged disabilities. In this certificate, which also was received by the RO in May 1948, the physician stated that the veteran had had office visits on February 11, 16, 20, and 25, 1948 and had been seen on those occasions for nervousness, hypotension, and lumbosacral neuritis. Also contained in the claims file was the report of a VA compensation and pension general medical examination that the veteran underwent in July 1948 in connection with the same May 1948 claim. The conclusion of the examiner was that there was no "medical disease" or neuropsychiatric illness. In contrast, the report of the medical history taken during the examination noted that the veteran complained of suffering from headaches at that time. It also documented that the veteran said that he had experienced dizziness, fainting spells, and nervous trouble. However, the report of a VA neuropsychiatric examination performed upon the veteran on the same date as the general medical examination identified no neuropsychiatric disorder. In addition, the claims file contained records of outpatient treatment received by the veteran at the VA Medical Center (VAMC) in Albany, New York from May 1994 through October 1996 and of his hospitalizations there in April 1994 and in May 1996-June 1996. These records documented that the veteran underwent surgery for peripheral vascular disease of the left and right legs, carotid stenosis, a right eyelid condition, and degenerative joint disease in the left shoulder and the spine. The records indicated that the veteran underwent vascular surgery in his left leg in May 1996 and in his right leg in June 1996. A clinical note made in August 1996 stated that the veteran had complained of some blurred vision since the surgery. Reports of optical examinations received by the veteran in June 1996 and October 1996 record that he complained of blurred vision in both eyes. He was evaluated for an optic nerve disorder as well as a new prescription and was diagnosed with entropion in the right eye. Reports concerning audiological examinations received by the veteran showed that he was diagnosed with bilateral hearing loss in September 1996, when he was recommended for a hearing aid, and that he complained in October 1996 of occasional disequilibrium. The veteran testified at his personal hearing in October 1998. He stated the circumstances surrounding his being injured during service. He recounted that during the automobile accident, his head hit and cracked the windshield of the car in which he was riding and that his elbows hit his ribs as he grasped the dashboard. He testified that he was hospitalized with his ribs strapped and his forehead bandaged. He recalled losing consciousness sometime after, but not immediately after, the accident in which he was injured. The veteran claimed that he had been treated during service at sick call for symptoms that he maintained were related to those injuries; he testified that he sometimes observed that when seen on those occasions the individual did not "write anything down." When asked by the hearing officer, the veteran affirmed that he had not been receiving treatment for headaches, blackouts, dizziness, or residuals of a head injury. He could not direct the hearing officer's attention to any private medical records of such treatment since service. He testified that he no longer had blackouts or dizziness. However, he asserted that he sometimes had headaches, which he said came on suddenly. During his testimony, the veteran described the headaches as subtle and as "awful." He stated that the last headache he experienced occurred two months earlier. II. Analysis The veteran and his representative argue that the veteran is entitled to compensation for residuals of a cerebral concussion, for headaches, dizziness, and blackouts, and for residuals of broken ribs. They maintain that the veteran has current medical conditions involving these pathologies and that these conditions are the outgrowth of injuries received by the veteran during his service. Service connection can be awarded for disability resulting from personal injury suffered or disease contracted in the active service. 38 U.S.C.A. § 1110, (West 1991); 38 C.F.R. § 3.303(a) (1999). However, a person who submits a claim for benefits under a law administered by the Secretary shall have the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. If the evidence of record does not show that the claim is well grounded, the Board has no jurisdiction to proceed to adjudicate its merits. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). The threshold issue before the Board is whether there is evidence of record sufficient to render well grounded the veteran's claims for service connection. A claim need not be established conclusively in order for it to be well grounded. It is sufficient if the evidence of record establishes a plausible claim, one which is either meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In particular, the evidence of record must show: a current disability; the incurrence (or, in the case of preexisting conditions, the aggravation) of an injury or disease during service; and a causal nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Evidence of record, unless incredible on its face, will be accepted as credible for the purposes of determining whether a claim is well-grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). However, incompetent evidence will not be considered. Grottveit v. Brown, 5 Vet. App. 91. Each element of a well-grounded claim must be supported by evidence that is competent with regard to the issue in concern. In most instances, only authoritative medical evidence may establish the first and third elements of a well-grounded claim. Although a layperson is competent to describe his own symptoms, see Savage v. Gober, 10 Vet. App. 488 (1997), the first element of a well-grounded claim usually requires that the record contain a current medical diagnosis. Caluza, 7 Vet. App. at 506. The second element of a well-grounded claim, the incurrence or aggravation of an injury or disease during service, may be supported by lay or medical evidence depending on whether the issue in concern is an ordinary factual one (such as whether a person experienced an injury during service) or is medical in nature (such as the nature and effects of the injury sustained). See Grottveit, 5 Vet. App. 91. The third element of a well grounded claim, a causal nexus between the inservice incurrence or aggravation of injury or disease and the current disability, requires a determination of medical causation or etiology. The record must contain medical evidence in the form of an opinion by a physician or other medical expert that this nexus exists. See Caluza, 7 Vet. App. at 506. Lay testimony may be competent on this issue as well. See Savage, 10 Vet. App. 488. However, lay testimony standing alone will not be sufficient evidence of any medical proposition that must be shown in order to establish a well- grounded claim. See Elkins v. West, 12 Vet. App. 209; Voerth v. West, 13 Vet. App. 117 (1999); see also Routen v. Brown, 19 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (1998), cert. denied, 119 S. Ct. 404 (1998). Turning to the veteran's claims of entitlement to service connection, the Board finds that well-grounded claims are not presented by the evidence of record. The evidence shows that the veteran sustained a brain concussion, accompanied by a head wound, during his service. The evidence also indicates that it is possible that the veteran fractured his left ribs during service. Thus, the second element of a well-grounded claim is established by the record. As to the first element of a well-grounded claim, the existence of a current disability, the Board, as required, accepts as true the hearing testimony of the veteran that he experiences headaches, as well as the 1996 medical documentation that the veteran experienced occasional disequilibrium and blurred vision. See King, 5 Vet. App. at 21. However, the record contains no medical opinion diagnosing the veteran with any disorder related to these symptoms. Also accepted as true is the medical evidence that the veteran suffers from degenerative joint disease in the left shoulder and spine. However, the record contains no medical opinion that this disorder represents the residuals of any fracture of the ribs. Therefore, the Board finds that there is no competent evidence of record that the veteran has the medical disorders which he claims. In the absence of such evidence, there can be no well-grounded claim for compensation. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (Congress specifically limits entitlement for service- connected disease or injury to cases where such disease or injury resulted in a present disability). Furthermore, the evidence of record establishes no causal connection between the current disabilities alleged by the veteran and the injuries that he received during service. The record contains no medical opinion establishing such a connection. Nor does the record demonstrate the continuity of symptomatology since service that might provide the occasion for such a medical opinion. See Savage, 10 Vet. App. 488; Voerth, 13 Vet. App. at 120 (until a claimant "presents competent medical evidence to provide a relationship between [the] current disability and either an in-service injury or [a] continuous symptomatology, his claim cannot be considered well grounded"). The Board notes that a claimant who has not presented a well- grounded claim is not entitled to invoke VA's duty to assist under 38 U.S.C.A. § 5107(a). See Morton v. West, 12 Vet. App. 477 (1999). Finally, the Board has considered the "benefit of the doubt" doctrine asserted by the veteran's representative in its brief on appeal. See 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). However, as the veteran's claim does not meet the threshold of being well grounded, a weighing of the merits of the claim is not warranted and the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered the veteran's hearing testimony in making its decision. Although his testimony is considered credible insofar as he described his inservice injuries and his belief in the merits of his claims, as noted earlier, he is not shown to be competent to offer an opinion as to medical diagnosis or etiology. ORDER As a well-grounded claim has not been presented, entitlement to service connection for broken ribs is denied. As a well-grounded claim has not been presented, entitlement to service connection for headaches, blackouts, and dizziness is denied. As a well-grounded claim has not been presented, entitlement to service connection for brain concussion is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals