Citation Nr: 0000845 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 91-44 251A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Lloyd Durnal, Agent WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty from February 1964 to March 1967. This appeal arises from a rating decision of September 1990 from the North Little Rock, Arkansas, Regional Office (RO). The veteran appealed this decision to the Board of Veterans' Appeals (Board) and in an April 1997 decision, the case was remanded to the RO for further evidentiary development. The case was returned to the Board and in an October 1997 decision, the case was again remanded to the RO for evidentiary development. The case is again before the Board for consideration. The Board's 1997 remands returned the issue of service connection for a psychiatric disorder to the RO. In a March 1999 rating decision, service connection for post traumatic stress disorder was granted. This grant of service connection resolved the appeal for service connection for a psychiatric disorder. 38 U.S.C.A. § 7105(d) (West 1991); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), Holland v. Brown, 9 Vet. App. 324 (1996), rev'd sub nom. Holland v. Gober, No. 97-7045 (Fed. Cir. July 29, 1997). Accordingly, the Board will not consider this issue further. FINDINGS OF FACT 1. There is no competent evidence of a lumbar spine disorder during service. 2. There is no competent evidence of arthritis of the lumbar spine within one year of discharge from service. 3. There is no competent evidence linking any post service lumbar spine disorder to service or a claimed injury in service. CONCLUSION OF LAW The claim for service connection for a lumbar spine disability is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, it is noted that the veteran's original claims file was lost. The RO has prepared a new claims file based in large part on copies of records supplied by the veteran. In letters to the veteran in January 1998 and September 1998, the veteran was asked to provide any additional pertinent evidence that may be in his possession or indicate if any additional pertinent evidence could be obtained. No response was received. Accordingly, the Board must proceed with the evidence currently in the claims file. The threshold question to be resolved is whether the veteran's claim is well-grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). A veteran has, by statute, the duty to submit evidence that a claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In order for a claim for service connection to be well grounded, there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's testimony, may constitute sufficient evidence to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, 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. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Additionally, "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 1991). In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). The disease entity must be identified and shown to be chronic during service. In the absence of chronicity, continuity of symptomatology following discharge is required. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted when all of the evidence demonstrates that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Where a veteran served continuously for ninety (90) days or more, and arthritis becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (1999). The available service medical records do not show any complaints or findings related to the lumbar spine. Therefore, there is no evidence of a lumbar spine disorder during service. 38 C.F.R. § 3.303 (1999). An employment physical examination, dated March 9, 1967, notes postural scoliosis and pelvic tilt. The examination report does not show arthritis. Accordingly, there is no evidence of arthritis of the lumbar spine within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a) (1999). A May 1990 VA examination report notes the veteran claimed he injured his back unloading a ship and ultimately underwent surgery. An October 1990 VA hospital report notes a history of fusion of L4 to S1 in 1966 (sic). A VA clinical record in March 1991 notes the veteran was status post surgery for a herniated disc of the lumbar spine in 1976 and a March 1994 VA clinical record notes status post fusion at L4-5. However, none of these records provide competent evidence that the post service lumbar spine surgery was related to the claimed inservice injury. Therefore, there is no competent evidence in the record which shows that any current lumbar spine disability is related to the claimed lumbar spine injury during service. The veteran testified at RO hearings in August 1992 and August 1995 that he injured his back on a ship while unloading boxes of shells. He indicated that he received treatment for his back during service. However, there is no evidence in the service medical records of this. As noted, an employment physical examination report that is dated within one week of his discharge from service indicates postural scoliosis and pelvic tilt. The veteran has indicated that this shows that he had a lumbar spine disorder that was incurred in service. However, this report does not relate the postural scoliosis and pelvic tilt to service or any injury during service. Additionally, the veteran has indicated that the back disorder that he underwent surgery for 1976 was a continuation of the claimed inservice injury. However, there is no competent medical evidence of this. His assertions do not constitute competent medical evidence since as a lay person, he is not considered competent to render opinions as to medical diagnoses or causation. 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. Grottveit v. Brown, 5 Vet. App. 91 (1993). A claimant's personal belief, however sincere, cannot form the basis of a well grounded claim. Voerth v. West, No 95-904, slip op. at 4 (U.S. Vet. App. Oct. 15, 1999). The veteran has not submitted evidence that would justify a belief by a fair and impartial individual that his claim is plausible. There is no competent evidence of any lumbar spine disorder in service or arthritis of the lumbar spine within one year of discharge from service. There is also no competent evidence which relates any current lumbar spine disorder to service. Accordingly, the claim is not well grounded. Tirpak v. Derwinski, 2 Vet.App. 609 (1992), Caluza v. Brown, 7 Vet.App. 498, 506 (1995). A claim that is not well grounded is still a claim, and the appropriate disposition of such a claim is to disallow it. See Edenfield v. Brown, 8 Vet.App. 384 (1995). Additionally, where a claim is not well grounded, the VA does not have a statutory duty to assist the claimant in developing the claim. Epps v. Gober 126 F.3d 1464 (Fed.Cir. 1997). As noted, the veteran's claims file was lost. In letters to the veteran in January 1998 and September 1998, he was asked to provide any additional pertinent evidence that may be in his possession or indicate if any additional pertinent evidence could be obtained. No response was received. Therefore, the RO was not on notice to attempt to obtain additional evidence. Based on the foregoing, the veteran's claim for service connection for a lumbar spine disability is denied as being not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). ORDER Service connection for a lumbar spine disability is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals