Citation Nr: 0006057 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-34 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from May 1955 to May 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. By a Board decision in April 1990, entitlement to service connection for a low back disability was denied. 2. Evidence associated with the claims file subsequent to the Board's April 1990 denial bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 3. There is no competent medical evidence showing treatment of a low back disability in service, or linking a low back disability with the veteran's period of active service, and the claim is not plausible. 4. There is no competent medical evidence showing a right foot injury in service or linking a right foot disability with the veteran's period of active service, and the claim is not plausible. CONCLUSIONS OF LAW 1. The Board's April 1990 decision denying entitlement to service connection for a low back disability is final. 38 U.S.C.A. 7104 (West 1991). 2. New and material evidence having been submitted, the veteran's claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The veteran's claim for entitlement to service connection for a low back disability is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1999). 4. The veteran's claim for entitlement to service connection for a right foot disability is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and material evidence The veteran essentially asserts that there is new and material evidence to support reopening his claim of entitlement to service connection for a low back disorder. The Board previously had considered the claim for service connection for a low back disability and, by an April 1990 decision, denied the benefit sought. The denial was based upon the Board's finding that there was no showing of treatment in service (service medical records were unavailable), and post service records showed treatment beginning in the 1980's, decades after service discharge. The April 1990 Board decision is final. See 38 U.S.C.A. § 7104 (West 1991). The VA may reopen and readjudicate a final decision only upon finding new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a) (1999); see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). New and material evidence is evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a). If VA finds evidence to be new and material it then determines whether the claim is well grounded. Winters v. West, 12 Vet. App. 203, 206-07 (1999) (en banc). The VA then evaluates a well- grounded claim on the merits after ensuring fulfillment of the duty to assist. Id.; 38 U.S.C.A. § 5107. The evidence of record at the time of the Board's April 1990 decision included private medical records of treatment for low back problems dated beginning in 1986. As noted above, the veteran's service medical records were unavailable and presumed lost in a fire at the National Personnel Records Center in 1973. Among the evidence associated with the claims file after entry of the Board's April 1990 decision, which also includes testimony by the veteran at his February 1998 hearing, are service morning reports dated in the 1950's showing that the veteran was transferred from duty to his quarters in July 1957 and in August 1957 due to illness. These records are new and material because they are neither cumulative nor redundant of previously submitted materials and because they purport to provide a necessary element of the veteran's claim. That is, evidence of treatment in service for his back disability. With the submission of this new and material evidence the veteran's claim is thus reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The next step in the Board's analysis is to determine whether the veteran's reopened claim is well grounded. See Winters v. West, 12 Vet. App. at 206. A well grounded claim is one that is plausible, capable of substantiation or meritorious on its own. 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well grounded claim there is no duty to assist the claimant in developing the facts pertinent to his claim and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). To establish that a claim for service connection is well grounded the veteran must demonstrate the existence of a current disability, the incurrence or aggravation of a disease or injury in service, and a nexus between the current disability and the in-service injury. Id. at 1467-1468. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to prove service incurrence. Id. at 1468. Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b), 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 that same condition currently exists. This evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision 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). The service medical records are unavailable. Service morning reports show that in 1957, the veteran was placed on sick duty in his quarters. However, the record does not show the reason for this or that the veteran was so placed due to a low back injury. Private medical records show treatment beginning in 1986 for back complaints. At that time the veteran gave a history of being knocked off a pipe rack at work and when catching himself on the ladder, felt a sudden jerking in his back. It was noted that he had undergone back surgery in March 1984. The examiner diagnosed muscle tendon unit strain of the back; herniated nucleus pulposus with operated disk; bilateral L5 nerve root impairment; and bilateral S1 nerve root impairment. The examiner opined that the injury and the diagnoses arose out of and in the course of the veteran's employment. There is no documentary evidence of treatment for a low back disability in service or for many years thereafter. It is notable that a private physician has linked the veteran's low back disability with an injury sustained in the 1980's in the course of the veteran's employment. No medical evidence associated with the claims file causally links the veteran's diagnosed current back disability with his period of active service. In testimony at his RO hearing in February 1998, the veteran testified concerning his disability in service and thereafter. Beyond the appellant's own statements, there is no competent medical evidence linking a back disability with his period of active service. However, because the veteran is a lay person with no medical training or expertise, his statements alone cannot constitute competent evidence of the required nexus. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that lay persons are not competent to offer medical opinions). Inasmuch as the record is devoid of competent medical evidence establishing a link between the veteran's back disability and his active service, the veteran's claim for service connection is implausible and must be denied as not well grounded. A right foot disability As noted above, the threshold question to be answered is whether the veteran has presented evidence of a well-grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board finds that the veteran's claim for service connection for a right foot disability is not well grounded, and there is no further duty to assist the veteran in the development of this claim. In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam), The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court") stated that in order for a claim 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 inservice injury or disease and the current disability (medical evidence). There is no showing that the veteran was treated in service for a right foot disability. The service morning reports show that in 1957 he was assigned to quarters due to sickness; the nature of his confinement is not indicated. Private records show that in January 1986, the veteran gave a history of having broken his ankles in 1961 and that he had had no subsequent trouble with his ankles. The examiner found decreased sensation in the right foot and absent reflexes. Marked weakness on toe and heel walking was also noted. There is no showing of inservice treatment for a right foot disability and no nexus between any current right foot disability and service. The record as a whole thus fails to include any evidence of a nexus between the claimed in- service injury or disease and the current disability (medical evidence), and therefore the third requisite element for the presentation of a well grounded claim has not been met. Caluza v. Brown, 7 Vet. App. 498 (1995). Beyond the veteran's own statements, there is no competent medical evidence linking a right foot disability with his period of active service. However, because the veteran is a lay person with no medical training or expertise, his statements alone cannot constitute competent evidence of the required nexus. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) Accordingly, the claim must be denied since it is not well grounded. The Board wishes to make it clear that it does not doubt the veteran's sincerity in pursuing his claims, and it is unfortunate that his service medical records are unavailable. However, the available post service medical records show no treatment for either disability until the 1980's. They also show that the veteran provided histories of both disabilities that associated them with events which occurred many years after service discharge. Consequently, the claims must be denied as not being well-grounded. Because the veteran has failed to meet his initial burden of submitting evidence of well-grounded claims for service connection, the VA is under no duty to assist him in developing the facts pertinent to his claims. See Epps, 126 F.3d at 1468. The veteran is free at any time in the future to submit evidence in support of his claims. Medical records of complaints and treatment of a back disability and/or a right foot disability in service or shortly thereafter would be helpful in establishing well-grounded claims, lay statements from parties attesting to the veteran's injuries and treatment during service or shortly thereafter would also be helpful, as well as medical opinion linking any current findings with trauma incurred in the veteran's military service. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER New and material evidence has been submitted to reopen a claim for service connection for a low back disability and the appeal has been granted to that extent. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right foot disability is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals