Citation Nr: 0006786 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 96-45 427A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for claimed hypertension. 2. Entitlement to service connection for a claimed low back disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from December 1962 to January 1967. This matter initially came to the Board of Veteran's Appeals (Board) on appeal of a July 1996 rating decision of the RO which determined that no new and material evidence had been submitted to reopen the veteran's claims of service connection for hypertension and a low back disorder. In September 1997, this matter was remanded for additional development of the record. The Board subsequently reopened the veterans' claims and remanded for additional development in June 1999. Consequently, the issues on appeal are as stated on the preceding page. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. No competent evidence has been presented to show that the veteran has current disability manifested by hypertension or low back disability due to disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW The veteran has not submitted evidence of well-grounded claims of service connection for hypertension and a low back disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (Court) has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and of a relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. The regulations 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). If the disorder is a chronic disease, service connection may be granted if manifest to a degree of 10 percent within the presumptive period; the presumptive period for hypertension is one year. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). A careful review of the veteran's service medical records shows that, in April 1963, the veteran was treated for low back pain with associated spasm and tenderness of the left paralumbar muscle and slight limitation of motion. At that time, the impression was that of muscle strain. In August 1963, the veteran was treated for lumbar strain and was given a light duty profile for one week. The veteran presented for treatment of recurrent low back pain in September 1963 and was once again given a light duty profile for one week. It was also noted at that time that the veteran had been involved in a motor vehicle accident one year ago. X-ray studies performed at the time revealed no evidence of bone or joint abnormalities. The final diagnosis was that of low back strain. In October 1965, the veteran reported that he had injured his back the previous day while lifting a filing cabinet. The final impression was that of acute back strain. In July 1966, the veteran was noted to be experiencing right parasacral pain increased with movement. He was diagnosed as having a sacral strain. The report of separation examination conducted in December 1966 was negative for findings relative to a low back disorder. That same report, however, included an initial blood pressure reading of 136/98 and details of a three-day blood pressure check resulting in readings of 132/92, 126/88 and 130/90. The medical history portion of the separation examination report included a notation to the effect that there were no symptoms of elevated blood pressure. The veteran was afforded a VA examination in May 1986. At that time, he reported that he had high blood pressure when he was discharged from service and was presently being treated for such condition through a private physician. With regard to his lower back, the veteran stated that he had injured it several times in service and essentially reinjured it approximately once a year. The examination resulted in a diagnosis of essential hypertension, incompletely treated and inadequately controlled, and a back condition. An x-ray study of the lumbar spine showed hypertrophic lipping with slight narrowing posteriorly to L-5, S-1, but no evidence of acute injury or slippage. Private treatment reports submitted in support of the veteran's claim from John Morrison, Jr., M.D., document treatment for hypertension as early as March 1985. VA outpatient reports include a notation dated in August 1996 that the veteran had reported that, since he had been treating his hemorrhoids, his back pain had cleared and that, consequently, he had discharged himself from back school. As noted in the most recent Board remand, the veteran was afforded a personal hearing before a Member of the Board in September 1997. At that time, he testified that within one year of his separation from service, he underwent an employment physical examination with the Roanoke Police Department which revealed elevated blood pressure readings. Although he couldn't recall the exact date when he first began to receive treatment for his low back condition after service, he stated that he was receiving treatment at least as early as 1974. He further testified that he tended to self-treat himself for problems that he currently experienced with his back. The Board notes that, in July 1999 in compliance with the Board's directives, the RO contacted the veteran in an attempt to obtain any records of treatment associated with his hypertension and low back disorder or any other information supportive of his claims; however, the veteran failed to respond to the RO's inquiry. Although the veteran has submitted sufficient evidence to demonstrate that he currently suffers from disability manifested by essential hypertension and low back disability, no competent evidence has been submitted to support his lay assertions that either of these disabilities is due to a disease or injury which was incurred in or aggravated by service. The veteran, as a lay person, is not competent to offer an opinion as to questions of medical diagnosis or causation presented in this case. See Espiritu v. Brown, 2 Vet. App. 492 (1992). In the absence of medical evidence to show that the veteran suffers from current disability manifested by hypertension or low back disability due to disease or injury which was incurred in or aggravated by service, the Board must conclude that the veteran has failed to meet his initial burden of producing evidence of well-grounded claims of service connection. Hence, service connection must be denied. If a well-grounded claim has not been submitted, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that another remand is not required in this case as compliance with the mandates of 38 U.S.C.A. § 5103(a) has been previously achieved. ORDER Service connection for hypertension and a low back disorder is denied, as well-grounded claims have not been presented. STEPHEN L. WILKINS Member, Board of Veterans' Appeals