Citation Nr: 0006039 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-26 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of an upper back injury to include cervical myelopathy. 2. Service connection for residuals of a head injury. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Peter C. Lenart, Associate Counsel INTRODUCTION The veteran served on active duty in the military from August 1966 to October 1971. In January 1996, the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina denied the veteran's claims for service connection for an upper back injury, residuals of a head injury, and for dental damage resulting from a mouth injury. The veteran timely appealed these denials to the Board of Veterans' Appeals (Board). He testified before a hearing officer at the RO on April 4, 1996. In July 1999, the RO issued a Difference of Opinion rating decision that granted the veteran service connection for his dental injury claim. The veteran testified before the undersigned Member of the Board on December 9, 1999 concerning his two remaining service connection issues. The veteran's appeal is now before the Board for resolution. FINDING OF FACT There is no competent medical nexus evidence linking the veteran's residuals of an upper back injury to include cervical myelopathy or his residuals of a head injury to his service in the military. CONCLUSION OF LAW The claims for service connection for an upper back injury to include cervical myelopathy or residuals of a head injury are not well grounded. 38 U.S.C.A. § 507(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran testified at an RO hearing in April 1996. The veteran alleges that he was injured in an automobile accident in the Summer of 1970 as he was departing his duty station in Arlington, Virginia. The veteran has indicated that he was driving his colleague's car, and that the accident resulted in the veteran traveling the wrong way on a one-way street. The veteran indicated that he received facial lacerations, and that these injuries were treated in the hospital located at Andrews Air Force Base. The veteran testified that he also hurt his back in this car accident. He indicated that he did not seek treatment for his problems after service until 1991. There is no evidence of the veteran's treatment in his Service Medical Records (SMRs). In addition, the RO's and the veteran's attempts to verify the accident's occurrence through police records and court documents has been unsuccessful, as such records have been destroyed. The veteran submitted a statement from his mother indicating that the veteran's wife called his mother to tell her about the veteran's car accident. The veteran's now ex-wife also submitted a statement that indicated the veteran returned home one evening with facial injuries that he attributed to a car accident. The veteran underwent a VA pension examination in May 1997. The veteran reported knee trouble, neck and low back pain. The veteran also reported experiencing pain across his shoulders and arms that was attributable to cervical myelopathy. The veteran's range of motion (ROM) of his neck was left and right rotation of 55 degrees, right and left flexion of 30 degrees, forward flexion and backward extension of 25 degrees each but with passive assistance of 30 degrees each. THE ROM of his lumbar spine was 10 degrees of backward extension, right and left lateral flexion of 20 degrees, right and left lateral rotation of 20 degrees, and forward flexion of 80 degrees. The veteran was able to walk on his toes and heels, and was able to squat half way to the floor and come back up. The veteran experienced full ROM of the knees, but with medial surface tenderness of the right knee. The veteran was diagnosed with arthralgia of the right knee, and there was no x-ray evidence of degenerative joint disease (DJD). The examiner also diagnosed the veteran with arthralgia of the neck with x-ray evidence of degenerative disc disease (DDD) and DJD. The veteran was further diagnosed with low back pain. X-ray evidence showed the presence of both DDD and DJD. This examination did not address the etiology of these conditions. The veteran's claims file contains the interpreted x-ray results that are identified with a May 1997 transcription date. The date that the x-rays were taken is not stated clearly on the report. The report concerning cervical spine x-rays indicates a clinical history of pain, and notes the presence of cervical spondylosis most marked at C-3/4 and C- 4/5. Joint space narrowing and osteophyte formation was noted. Straightening of the spine was noted, but no acute compression fractures or paravertebral tissue swelling was observed. The examiner's impression was of degenerative joint disease. The report addressing the x-rays taken of the veteran's lumbosacral spine noted the presence of marked osteophyte formation at L-2/3 and L-3/4 without significant disc space narrowing. Facet joint arthritis was observed to involve L- 3/4 and L-4/5 with sclerosis. The examiner's impression was of lower lumbar DDD and facet joint arthritis. The veteran also underwent a VA mental disorders examination in May 1997. He reported having been in a motor vehicle accident in 1970, and informed the examiner that he was unconscious for 15 minutes. He reported experiencing headaches of 30-minute duration once or twice a week since that time. The veteran described his headaches as a dull, throbbing pain. The veteran underwent nerve conduction studies in 1983 and was diagnosed with right perineal nerve palsy. The veteran also reported that he had experienced numbness in his left arm, hand and foot for many years. The veteran also reported treatment for posterior neck pain in 1995 at the Durham, Virginia VA Medical Center (VAMC). An MRI scan revealed tat the veteran had a C4-5 herniated nucleus pulposus with a cervical canal stenosis. Treatment consisted of wearing a cervical collar. Clinical examination included a neurological examination. There was no asymmetry, involuntary movements or atrophy evident in the veteran's motor systems. Some decreased strength was observed in his right leg as compared to his left. His sensory systems showed some decreased sensation to light touch and pinprick stimuli along the distribution of the perineal nerve on the right leg and the left arm from mid-forearm distally, involving the 4th and 5th fingers. The veteran's coordination was observed to be intact. The veteran was observed to be alert and cooperative. He exhibited no loose associations or flight of ideas, and no bizarre motor movements or tics. His mood was noted to be calm and appropriate, and he demonstrated no delusions, hallucinations, or suspiciousness. His insight and judgment appeared to be adequate. The examiner diagnosed the veteran with a cerebral concussion, headaches with no neurological sequelae, right perineal palsy, and cervical myelopathy involving his left arm. The veteran's history of alcohol dependence was also included in the examiner's diagnosis. The examiner did not discuss the etiology of these conditions. In December 1999, the veteran appeared before the undersigned Member of the Board of Veterans' Appeals at a hearing in Washington, D.C. The veteran recounted his 1970 car accident and treatment at Andrews Air Force Base. The veteran described his current symptoms and stated that he first sought post-service treatment for his medical problems in 1990 or 1991. The veteran also described his attempts to obtain documentation of the accident from military and civilian authorities. The veteran also testified that he had been unable to contact Chief Stickles, the individual who owned the car the veteran was driving at the time of the accident, and who was present for the accident. Legal Analysis Service connection may be granted for disability due to injury or disease incurred or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). However, a preliminary determination that must be made in a case involving a claim for service connection is whether the claim is "well grounded." A claim is "well grounded" if it is "plausible, meritorious on its own or capable of substantiation." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The initial burden of showing that a claim is well grounded-if judged by a fair and impartial individual-resides with the veteran; if it is determined that he has not satisfied his initial burden of submitting evidence sufficient to show that his claim is well grounded, then his appeal must be denied, and VA does not have a "duty to assist" him in developing the evidence pertinent to his claim. See Slater v. Brown, 9 Vet. App. 240, 243 (1996); Murphy, 1 Vet. App. at 81. In order for the claim for service connection to be well grounded, there must be competent evidence (lay or medical, as appropriate) 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. Epps v. Gober, 126 F.3d 1464, 1468 (1997); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service and that he still has such a condition. See also 38 C.F.R. § 3.3.0(d). Such evidence, however, must be medical unless it relates to a condition as to which, under the court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service, provided that continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). The veteran has satisfied the first of the three criteria for establishing a well-grounded claim concerning his back and head injury claims. The veteran's current medical condition affecting his back includes both DJD and DDD. This has been confirmed through the VA examinations of record. The veteran's current head injury is substantiated by the May 1997 examination that diagnosed him with a concussion and with headaches. The veteran is not able to meet the requirements of the second criterion for establishing a well-grounded claim because his service medical records (SMRs) do not address the injuries he alleges he sustained in a car accident in 1970. The documents associated with his separation physical, conducted in October 1971, indicate no clinical findings or diagnosis pertaining to the veteran's back nor do they indicate that the veteran had residuals of head or facial trauma. At that time, the veteran gave a negative response to the question of whether he experienced recurrent back pain or had any other medical problems. The veteran has not satisfied the third criterion for a well- grounded claim, as there is no medical nexus evidence linking his current disabilities to his military service. No chronic back condition was shown in service or in the years immediately following his discharge, and there is no indication that he was treated for headaches until many years after service. In fact, the first medical evidence of the veteran's back problems or headaches following service is from 1991, some 20 years after his discharge from the military. Finally, there is no medical opinion of record suggesting that the veteran's current back problems, headaches, or residuals of cerebral concussion are related to anything that may have occurred during service. In the absence of competent evidence of a medical nexus between the current condition and service, the claim is not plausible, despite any current assertions or suggestions by the veteran that he has experienced continuous symptoms since service. See 38 C.F.R. § 3.303 and Savage, 10 Vet. App. at 498. The veteran alleges that his current back disability is the result of his service in the military and, specifically, the trauma he contained therein. While he certainly is competent to attest to the symptoms he experiences, he does not have the medical expertise or training to render a competent medical opinion on the etiology of his current disability; therefore, his allegations as to a nexus between his military service and his back disability have no probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board emphasizes that evidence, and not just allegations must support a well-grounded claim. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). Since the veteran has not satisfied his initial burden of submitting evidence sufficient to show that his claim for service connection for bilateral hearing loss is well grounded, VA is under no "duty to assist" him in developing the evidence pertinent to his claim. See Epps, 126 F.3d at 1468. Moreover, the Board is aware of no circumstances in this case that would put VA on notice that any additional relevant evidence may exist that, if obtained, would make his claim well grounded. See McKnight v. Gober, 131 F.2d 1483, 1485 (Fed. Cir. 1997). The RO denied the veteran's claim on the same premise as the Board--as not well grounded. The RO also notified him in the May 1996 Statement of the Case (SOC) of the requirements to submit a well-grounded claim. Clearly then, he is not prejudiced by the Board's decision to deny his claim on the same basis. See Bernard v. Brown, 4 Vet. App. 384, 392-93 (1994). Also, the Board views its (and the RO's) discussion to inform him of the type of evidence that is necessary to make his claim well grounded and warrant full consideration on the merits. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). Hence, the VA has met its duty to inform him of the evidence necessary to support his claim. See 38 U.S.C.A. § 5103(a). ORDER As evidence of well-grounded claims has not been submitted, the claims for service connection for residuals of an upper back injury to include cervical myelopathy and for residuals of a head injury are denied. _______________________________ LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals