Citation Nr: 0000378 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-09 328 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, claimed as secondary to the service-connected lumbosacral strain. 2. Entitlement to service connection for a bilateral leg disorder, claimed as secondary to the service-connected lumbosacral strain. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to May 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the RO. The Board notes for clarification that, although the veteran asserted a separate claim of service connection for a bilateral knee disability in his August 1996 claim for VA benefits, he stated in his May 1998 substantive appeal that, due to the absence of evidence noting treatment or a clear diagnosis of a specific knee disorder, he wanted to drop his separate claim of service connection for a knee disability. The veteran stated that he believed that his subjective complaints related to his knees were actually connected to his claimed leg disorder and should be considered as part of his claim for service connection for a bilateral leg disorder. FINDINGS OF FACT 1. No competent evidence has been submitted to show that the veteran has current cervical spine disability which was caused or aggravated by any service-connected disorder or due to other disease or injury which was incurred in or aggravated by service. 2. No competent evidence has been submitted to show that the veteran has a current bilateral leg disability which was caused or aggravated by any service-connected disorder or due to other disease or injury which was incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim of secondary service connection for a cervical spine disorder. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.310(a) (1999). 2. The veteran has not submitted evidence of a well-grounded claim of secondary service connection for a bilateral leg disorder. 38 U.S.C.A. §§ 1110, 5107, 7104; 38 C.F.R. §§ 3.303, 3.310(a). 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) (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 order for the claim of service connection to be well grounded, there must be competent evidence of: (1) a current disability; (2) an in-service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Evidentiary assertions by a claimant are accepted as true for purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or beyond the competence of the person making it. King v. Brown, 5 Vet. App. 19 (1993). 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; 38 C.F.R. § 3.303. Regulations also 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). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The veteran asserts, in his August 1996 claim for VA benefits, that he has cervical spine and bilateral leg disorders which developed as a result of his service- connected low back disability. The record establishes that the veteran's back disability, diagnosed as chronic mild lumbosacral strain in an August 1972 VA report of an orthopedic examination, has been service connected since May 1972. The VA medical records included a January 1997 VA report of spine examination that noted that the veteran reported pain in "the upper part of the lumbar area with occasional extension of pain in the right leg." The report noted that, upon examination, the veteran was very protective of his back and would not permit any range of motion of his back as he stated it was sore and did not want to aggravate it by bending. The report also noted normal findings regarding the veteran's legs, that he walked without a limp, that his legs had normal reflexes and pulses, that his straight leg raises were normal and that he had normal motion in all joints. Additionally, the report noted that no localized tenderness or muscle spasms were present in the veteran's back. Furthermore, the report noted that the veteran's spinal curves were normal and that his shoulders and pelvis were level. The report also noted that an x-ray examination of the veteran's lumbar spine revealed that the veteran's intravertebral joint spaces were well preserved, that there was no narrowing at any level, that there were no marginal spurs in the vertebral bodies, and that there was no evidence of scoliosis. Additionally, the report noted that the minimal spurring that was present was consistent with the veteran's age. The report concluded with a summary of findings of the objective physical examination and the x-ray examinations and stated that "the findings [were] rather good." The report noted that the major findings were subjective and that the physician was unable to be more specific, but that the veteran might have had attacks of back pain brought on with some activity for which there was no clear orthopedic diagnosis. The report also noted that the veteran's symptoms were "all purely subjective, with minimal objective findings." The report listed no diagnosis. A January 1997 VA report of x-ray examinations noted small anterior osteophytes at L3 and L4, that the vertebral height was normal, that the disk spaces were well maintained and that the posterior elements and the pedicles were normal. The report noted very minimal arthritis changes and no fracture or subluxation of the veteran's lumbosacral spine. In the veteran's January 1998 Notice of Disagreement (NOD) he stated that he believed the January 1997 VA medical examination was inadequate in that it did not include a review of his claimed secondary conditions or mention a correlation between his service-connected back disability and his claimed bilateral leg and cervical spine disorders. The veteran also stated that he believed that he should have been afforded a VA neurological examination to determine if any nerve or muscle impairment was evident which might have been the result of his service-connected back disability. The record also included a February 1998 private medical report of x-ray examination of the veteran's lumbosacral spine and pelvis. The report of the lumbosacral x-ray examination noted the position and alignment of the veteran's lumbosacral spine as normal, that the disk spaces were well preserved and that no intraosseous lesions were present. The report also noted an impression of "[n]ormal study." Additionally, the report of the x-ray examination of the veteran's pelvis noted "minimal ossification of the ligamentous insertions on the greater trochanters of the femurs consistent with chronic inflammation." The report also stated that the femoral heads were centered in the acetabula and that no additional focal abnormalities were demonstrated and that, otherwise, the examination was unremarkable. A March 1998 private chiropractic report noted that the veteran reported his primary complaints as being low back and bilateral leg pain. The report noted subluxations of the veteran's lumbar spine and pelvis as well as "[m]uscle tightness and tenderness in the lumbar and right and left sacroiliac areas." After the RO issued an August 1998 Supplemental Statement of the Case, which informed the veteran that his claims were not well grounded due to the lack of medical evidence which demonstrated a nexus between his service-connected disability and the claimed bilateral leg and cervical spine disorders, the veteran provided a written statement reiterating his belief that the January 1997 report of VA examination was incomplete. For the purposes of determining whether the claim is well grounded, the record may be read to indicate that the veteran has a current bilateral leg disorder, as the February 1998 private medical report of x-ray examination noted "minimal ossification of the ligamentous insertions on the greater trochanters of the femur consistent with chronic inflammation." However, there is no medical evidence of record which indicates that the veteran has a current cervical spine disorder. Additionally, for the purposes of determining well groundedness, the record supports that the veteran had an in-service injury or disease, as his chronic mild lumbosacral strain has been service-connected since May 1972. However, the record contains no medical evidence establishing a nexus between the claimed cervical spine and bilateral leg disorders and his service-connected lumbosacral strain or other in-service injury or disease. Although the veteran argues that both his claimed cervical spine disorder as well as his claimed bilateral leg disorder developed as a result of his service-connected back disability, the record contains no medical evidence connecting the claimed disorders to his service-connected back disability or other injury or disease in service. Indeed, the January 1997 VA medical report indicated that the x-ray examination findings of the veteran's back were rather good. The report also noted that the major findings were subjective, that the physician was unable to be more specific, and that although the veteran might have had attacks of back pain brought on with some activity, there was no clear orthopedic diagnosis. Finally, the report stated that the veteran's symptoms were purely subjective, with minimal objective findings, and listed no diagnosis. As noted hereinabove, where a determinative issue involves a question of medical diagnosis or causation, competent evidence is required to render the claim plausible. See Grottveit v. Brown, 5 Vet. App. at 93. As a lay person, the veteran is not competent to make such a determination. See Espiritu v. Brown, 2 Vet. App. 492 (1992). Because the veteran has not submitted competent evidence of a nexus, the Board finds that the claims of secondary service connection for cervical spine and bilateral leg disorders are not well grounded. See Caluza v. Brown, 7. Vet. App. at 506. In claims that are not well grounded, 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 a remand is not required in this case. The veteran has not put VA on notice that competent evidence exists that supports his claim that either his claimed cervical spine disorder or claimed leg disorder are related to his service-connected chronic mild lumbosacral strain or other disease or injury incurred in or aggravated by service. By this decision, the Board is informing the veteran of the evidence necessary to make his claim as set forth hereinabove well grounded. ORDER Secondary service connection for a cervical spine disorder is denied, as a well-grounded claim has not been presented. Secondary service connection for a bilateral leg disorder is denied, as a well-grounded claim has not been presented. STEPHEN L. WILKINS Member, Board of Veterans' Appeals