Citation Nr: 0003371 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-28 815 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for post-operative residuals of a laminotomy at the L5 level. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from June 1983 to September 1987. By a decision entered in June 1995, the RO denied a claim of service connection for post-operative residuals of a laminotomy at the L5 level. The veteran appealed the RO's determination to the Board of Veterans' Appeals (Board), and the Board, by a decision entered in December 1998, likewise denied the claim. The Board concluded that the claim was not well grounded. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court). In May 1999, the VA General Counsel filed an unopposed Motion to Remand and to Stay Proceedings (unopposed motion). In the unopposed motion, the General Counsel asserted that the Board had failed to provide adequate reasons and bases for its decision, inasmuch as it had not discussed whether the veteran would be entitled to service connection pursuant to the continuity of symptomatology provisions in 38 C.F.R. § 3.303(b), and the Court's decision in Savage v. Gober, 10 Vet. App. 488 (1997). Accordingly, it was requested that the Board's decision be "vacated and remanded for further development and adjudication of the claim on the merits . . . ." By an order dated in June 1999, the Court granted the unopposed motion, vacated the Board's December 1998 decision, and remanded the matter to the Board. In September 1999, the Board wrote the veteran and notified him of his right to submit additional argument and evidence in support of his appeal. Additional evidence was received at the Board in September and December 1999, and the veteran's representative submitted additional written argument in January 2000. FINDING OF FACT Competent evidence has been received which tends to link a current low back disorder to military service. CONCLUSION OF LAW The claim of service connection for post-operative residuals of a laminotomy at the L5 level is well grounded. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran maintains that service connection should be granted for post-operative residuals of a laminotomy at the L5 level. He contends that his current difficulties can be traced to an in-service injury. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1131 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306 (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477, 485-86 (1999). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant 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. at 495. The Court has held that evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus, or link, 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). This third element may also be established by the use of statutory presumptions. See 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In the present case, the Board finds that the claim of service connection for post-operative residuals of a laminotomy at the L5 level is well grounded. The record shows that the veteran has a current low back disorder, and he has submitted testimony and lay statements to the effect that he injured his back in service. In addition, the record now contains a letter from a private physician, William Kermond, M.D., dated in July 1999, which indicates that the veteran's low back symptomatology is "causally related to his injury in the Navy in 1987." Under the circumstances, the Board finds that the requirements for a well grounded claim have been satisfied. Consequently, to this extent, the appeal is granted. ORDER The claim of service connection for post-operative residuals of a laminotomy at the L5 level is well grounded; to this extent, the appeal is granted. REMAND As noted above, the Board has determined that the claim of service connection for post-operative residuals of a laminotomy at the L5 level is well grounded. Consequently, because the claim is well grounded, VA has a duty to assist the veteran in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that Dr. Kermond's report, although sufficient to make the veteran's claim well grounded, does not provide an adequate basis for a grant of service connection. This is so because Dr. Kermond's report does not appear to be based on a thorough review of the available evidence. The report indicates, for example, that the veteran first underwent surgery on his back in 1990, even though it is clear from the record that that surgery was performed in 1992. In addition, the report contains no reference to a July 1990 motor vehicle accident, and no discussion with regard to what effect, if any, that accident may have had on the veteran's overall disability picture. In the context of a claim for service connection, the duty to assist includes the duty to provide the veteran with a thorough and contemporaneous medical examination, one that includes a medical opinion as to whether the claimed disability is in any way related to service. Moore v. Derwinski, 1 Vet. App. 401, 405-06 (1991); Witherspoon v. Derwinski, 2 Vet. App. 4 (1991). Because the report from Dr. Kermond is unsatisfactory in this regard, and because the veteran has not yet been afforded an examination by VA aimed at assessing the etiology of the condition in question, a remand is required. 38 C.F.R. §§ 3.326, 19.9 (1999). A remand is also required so that efforts can be made to obtain additional evidence pertinent to the veteran's appeal. Documents in the file reflect that the veteran was involved in a motor vehicle accident in July 1990, that he underwent a second operative procedure at Winchester Hospital in 1995 or 1996, and that he was treated at the Orthopaedic Back Center for a total of 15 weeks, from December 1998 to April 1999. He has also testified that he may have seen a chiropractor sometime between 1987 and 1992, and the record contains a physical therapy evaluation report from Wellesley Hills Medical Center which shows that the veteran was to participate in physical therapy sessions beginning in April 1990, and indicates that he was at that time being seen by a Pat Schindler and Dr. Bohlman. Because it does not appear that the record presently contains all of the reports corresponding to these events, further efforts to assist the veteran are necessary. 38 C.F.R. § 19.9 (1999). The Board also finds that additional efforts should be made to obtain records from the service department. Although the record reflects that the RO has made several unsuccessful attempts to obtain the veteran's service medical records, the most recent communications from the service department, dated in March and August 1995, suggest that relevant records might be located if additional information is provided as to the nature of the veteran's alleged in-service injury, and the dates, places, and types of treatment received. It would be helpful to obtain the veteran's service personnel records, and to conduct a search of his unit's muster rolls and Navy shore station history, inasmuch as those documents may contain relevant information pertaining to the veteran's alleged in-service injury. For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for his back that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). The RO should ask the veteran to provide copies of any police and/or accident reports and litigation records pertaining to the motor vehicle accident in July 1990 and, after obtaining the required releases, should undertake efforts to procure any additional, relevant records of treatment from Winchester Hospital, the Orthopaedic Back Center, Wellesley Hills Medical Center, Pat Schindler, Dr. Bohlman, and from the chiropractor referenced by the veteran during the hearing held at the RO in February 1996. The RO should also make an effort to ensure that all relevant records of VA treatment have been obtained for review. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional evidence received should be associated with the claims folder. 2. The RO should ask the veteran to provide as much additional detail as possible regarding his claimed in- service back injury, including dates, times, locations, units of assignment, and places and types of treatment. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional information received should be associated with the claims folder. 3. The RO should contact the service department and ask it to conduct another search for the veteran's service medical records, including any records of in- service hospitalization and/or clinical treatment. The RO should include in its request the available information pertaining to the veteran's units of assignment, the nature of the alleged in-service injury, and the dates, places, and types of treatment he claims to have received. The RO should also request that the service department provide the RO with a complete copy of the veteran's service personnel records, and copies of any other records pertinent to the veteran's claim, including any muster rolls and/or Navy shore station histories which may contain information pertaining to the veteran's claimed in-service injury. The information obtained, if any, should be associated with the claims folder. 4. After the above development has been completed, the veteran should be scheduled for an examination for purposes of assessing the likely etiology of any currently noted back disorder. The examiner(s) should conduct a thorough review the claims folder, examine the veteran, and provide an opinion as to whether it is at least as likely as not that the veteran has a current back disorder that can be attributed to service. In so doing, the examiner(s) should comment upon the July 1999 opinion offered by Dr. Kermond, and the significance, if any, of the 1990 records from Wellesley Hills Medical Center, which show that the veteran was at that time being seen for complaints of discomfort in the right thoracic area, at approximately T5-T10, after lifting a heavy object at work. A complete rationale for all opinions should be provided. 5. The RO should thereafter take adjudicatory action on the claim here in question. If the benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals