Citation Nr: 0007925 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 96-34 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a disorder claimed as cervical muscle spasm. 2. Entitlement to service connection for a disorder claimed as chest pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from March 1987 to September 1995, and prior to that time for three months and 29 days. His appeal comes before the Board of Veterans' Appeals (Board) from an April 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was remanded to the RO in December 1998, and it is again before the Board for proper appellate consideration. The veteran was scheduled for a hearing before a member of the Board sitting in Chicago, Illinois. However, he did not report for the hearing. Given that no request for a postponement, showing of good cause for failure to appear, or proper request for a new hearing is of record, appellate review of the case can now proceed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704 (1999). FINDINGS OF FACT 1. The veteran has not presented competent medical evidence that a disorder manifested by cervical muscle spasm is etiologically related to his period of active duty. 2. The veteran has not presented competent medical evidence that he has a current disorder manifested by chest pain. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a disorder claimed as cervical muscle spasm is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for a disorder claimed as chest pain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran was scheduled for a VA examination on March 2, 1999, but he did not report to the examination. The RO sent a letter in April 1999 to the veteran's address of record located in Washington, Illinois, informing the veteran that he would be rescheduled for another examination if he so desired. The veteran did not respond to this letter. The veteran's representative apparently spoke with the veteran via telephone in December 1999 and it discovered that he had returned to active duty, but the record does not reflect the exact date as to when the veteran moved from the old address; he also provided his current mailing address at Ft. Riley, Kansas. The RO sent him an additional letter to that address concerning his appeal, but he again did not respond. The Board notes that the RO notified the veteran at his new address in Kansas before certifying this appeal to the Board for appellate consideration. The record does not indicate that the veteran returned to active duty before he was informed that he would be rescheduled for another examination if he so desired and before he was informed of the denial of his claims by August 1999 Supplemental Statement of the Case. Additionally, because the claims for service connection are not well grounded, as discussed below, the VA does not have a duty to assist the veteran under 38 U.S.C.A. § 5107(a) (West 1991). Pursuant to 38 C.F.R. § 6.655(a) (1999), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. As such, the Board will proceed based on the current evidence of record. A veteran who submits a claim for benefits to the VA shall have the burden of offering sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to his claim, and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (Fed. Cir. 1997). The veteran must demonstrate three elements to establish that a claim is well grounded. First, the veteran must present medical evidence of a current disability. Second, the veteran must produce medical or, in some instances, lay evidence of an in-service incurrence or aggravation of a disease or injury. Finally, the veteran must offer medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Epps v. Gober 126 F.3d at 1468-69. A veteran may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which 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 that the same condition currently exists. Such evidence must be medical unless the condition at issue is a type as to which, under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Disorder claimed as cervical muscle spasm The veteran's service medical records show that he had some complaints of neck pain while he served on active duty. The veteran complained of pressure and pain in the back of his neck in July 1987. He had a history of a motor vehicle accident, and he stated that pain was building between his shoulder blades. A diagnosis of muscle strain was made. A medical treatment note dated December 1988 reflects a provisional diagnosis of cervical muscle spasm, probably stress related. These records contain no further complaints or treatment until 1995. In a February 1995 separation examination, it was reported that the veteran had recurrent cervical spine spasm. Examination however, revealed no pertinent abnormalities. In a June 1995 screening note, the examiner noted that the veteran had a reported 4 month history of neck pain in February 1995, but at the time of the June visit, gave a 4 year history of neck pain. Examination was deferred at the time and the impression was subjective 4 year history of neck pain with duration discrepancy. An X- ray taken in June 1995 shows that he had early degenerative joint disease with mild neural foramen encroachment at C4-C5 on the left. The examiner noted that there were no cervical ribs, fracture, dislocation or lytic or blastic bone lesions. During a VA examination in March 1996, the veteran reported that he had had persistent neck pain since 1989. He described the pain as located mostly at the back of his neck and indicated that he had muscle spasm. On examination, the veteran's cervical range of motion was reported to be excellent in all directions. The veteran showed no objective evidence of pain on motion. Neurological examination was negative for any neurological deficits in the upper and lower extremities. Deep tendon reflexes were equal and symmetrical throughout. The examiner's review of the cervical X-rays demonstrated normal alignment with normal disc space height being present. There was questionable deformity of the C5 and C6 spinous processes which may have represented either bifid spinous process versus an old clay shoveler's fracture. The examiner stated that this did not provide any instability and was only an incidental finding. The veteran was diagnosed with chronic neck cervical muscle strain with spasm and questionable old C5-C6 clay shoveler's fracture of the spinous process which appeared to be healed versus bifid spinous processes. An X-ray taken of the cervical spine at that time showed no bone or joint abnormality, and the examiner's impression was a negative examination. Although this report includes a diagnosis of cervical spine disability, it does not constitute the requisite evidence etiologically relating that strain to the veteran's period of active service. In other words, the examiner made a diagnosis but he did not offer an opinion that the current muscle spasm and strain are connected to any disability arising during the veteran's active duty, including the diagnosis in June 1995 of early degenerative joint disease in C4-C5. In fact, this case was remanded, in part, in December 1998, in order to obtain clarifying medical evidence. The Board noted at that time that the diagnosis of chronic neck cervical muscle strain with spasm appeared to be based on history provided by the veteran rather than supported by findings noted at examination, that it was unclear as to the relationship, if any between the old clay shoveler's fracture and the veteran's service, and to reconcile the service department finding of early degenerative joint disease with the absence of such a finding on post-service VA examination. However, with the absence of such additional medical evidence, and due to the incompleteness and apparent deficiencies in the 1996 VA examination, the Board is unable to find the March 1996 examination report sufficient to provide medical nexus evidence in this case. The post- service finding of chronic neck cervical muscle strain was clearly not supported by examination at the time of the March 1996 VA examination and the Board must conclude, without additional medical evidence, that the diagnosis was based on the veteran's self-reported history alone. Further to the extent that the assessment of questionable shoveler's fracture versus bifid spinous processes is considered competent evidence of a current disability, the Board notes that neither of these disorders was noted in service and there is clearly no medical evidence of record suggesting a relationship to the veteran's service. Thus, the record as it stands essentially only contains the veteran's contention that he has a chronic cervical spine disability which is causally related to his military service. However, as the veteran is a layperson with no medical training or expertise, his contentions by themselves do not constitute competent medical evidence of a nexus between a current cervical spine disorder and his period of active service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). With respect to the criteria as set forth in Savage, the Board notes that the record reflects that the veteran was seen for neck pain in service on a few occasions. There is no diagnosis of a chronic cervical spine disorder in service, however. Other than the veteran's report on separation, service medical records do not show recurrent treatment for a chronic cervical spine disorder or otherwise corroborate the assertion at that time. In view of such evidence and the lack of any competent medical opinion establishing that a chronic cervical spine disorder was present in service and that a current cervical spine disorder is a manifestation of such chronic disorder, it is concluded that a chronic cervical spine disorder was not shown to be present in service and that service connection is not warranted on a direct basis or with application of 38 C.F.R. § 3.303(b); Savage, supra. As noted above, in Savage the Court observed that a claimant may obtain the benefit of § 3.303(b) by showing a continuity of symptomatology. The Court noted that a veteran's assertion of continuity of symptomatology, in and of itself, may be sufficient to well ground a claim by providing a nexus, in some cases. The veteran has indicated that he has had continuous neck symptomatology since service. The veteran, as a lay person, is competent to provide evidence of the occurrence of observable symptoms during and following service. See Savage, 10 Vet. App. at 497. However, the Court in Savage held that unless the relationship between any present disability and the continuity of symptomatology demonstrated is one as to which a lay person's observation is competent, medical evidence demonstrating the relationship is still required to well ground the claim. Id. at 497-98. It must be considered that there are many and diverse reasons that could explain the symptoms the veteran states that he continuously experienced. Expert medical opinion, which is lacking in the record, is required to establish such a nexus. While his statements are presumed to be credible, the veteran, as a lay person, is not competent to relate the symptoms which he has stated he has experienced during and since service to his current disability. As the record is devoid of any such competent medical evidence, the case is not well grounded. Disorder claimed as chest pain A review of the veteran's service medical records shows that he complained of chest pain on a number of occasions while he was on active duty which was variously attributed to mitral valve regurgitation, mechanical chest wall source, and anger and tension. The veteran underwent examination and evaluation, and it appears, however, that heart disease was ruled out as a source. In September 1995, the veteran was diagnosed as having affective disorder with a secondary diagnosis of atypical chest pain. At his VA examination in March 1996, he reported occasional chest pain that he characterized as sharp on both the left and right sides of his chest. The pain would come on suddenly during either exertion or rest, and they occurred about once per week. The examiner diagnosed atypical chest pain, non-cardiac, of a pleuritic nature. Once again, the VA examination report represents the only post-service medical evidence of record with regard to the claimed disability. As noted above, the veteran did not report to the examination in conjunction with the RO's attempt to clarify the record. As such, there is no competent medical evidence demonstrating that the veteran currently suffers from a disorder manifested by his chest pain. In light of this deficiency, the Board finds the claim for service connection not well grounded. See 38 U.S.C.A. § 5107(a). The Board acknowledges that the service medical records show that the veteran had chest pain while he was on active duty; however, there must be competent evidence of a current disability for a claim to be well grounded and complaints of chest pain do not constitute a current disability. The United States Court of Appeals for Veterans Claims has ruled that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999). As with evidence of a nexus to active service, the veteran's own contentions as to whether he has a current disability are insufficient to well ground his claim because he is a layperson and not qualified to make a medical determination in this regard. Espiritu, 2 Vet. App. At 492-495. Because he has failed to meet his initial burden of submitting evidence of well-grounded claims for service connection for chest pain and spasm of the cervical spine, the VA is under no duty to assist him in developing the facts pertinent to his claims. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Furthermore, the Board is not aware of the existence of additional relevant evidence that could serve to make the claims well grounded. Thus, there is no additional duty on the part of the VA under 38 U.S.C.A. § 5103(a) to notify the veteran of the evidence required to complete his application for service connection for the claimed disability. See McKnight v. Gober, 131 F.3d 1483, 1484- 85(Fed. Cir. 1997). That notwithstanding, the Board views its discussion as sufficient to inform the veteran of the elements necessary to well ground his claim and to explain why his current attempts fail. ORDER A well-grounded claim having not been presented, entitlement to service connection for a disorder claimed as cervical muscle spasm is denied. A well-grounded claim having not been presented, entitlement to service connection for a disorder claimed as chest pain is denied. S. L. KENNEDY Member, Board of Veterans' Appeals