BVA9507376 DOCKET NO. 93-12 075 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for poliomyelitis as secondary to service-connected residuals of a tonsillectomy. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from September 1944 to September 1945. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a September 1992 rating decision of the Togus, Maine, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contends that she developed poliomyelitis in 1949 as a result of a tonsillectomy in service which had weakened her immunity to viruses such as polio. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence which is sufficient to justify a belief by a fair and impartial individual that the claim to service connection for poliomyelitis as secondary to service-connected residuals of a tonsillectomy is well grounded. FINDINGS OF FACT 1. Available service medical records reflect that the appellant had a tonsillectomy in her youth and that she underwent a repeat tonsillectomy in July 1945. 2. The appellant is service connected for residuals of a tonsillectomy at the non-compensable disability level. 3. Post service medical records reflect that the appellant suffered poliomyelitis in August 1949. 4. VA examination report dated December 1992 reflects that there are no studies definitively linking the development of poliomyelitis with a history of tonsillectomy years earlier. 5. There is no objective medical evidence of record of a causal relationship between the service-connected tonsillectomy and the development of poliomyelitis nearly four years after discharge. CONCLUSION OF LAW The appellant has not submitted evidence of a well grounded claim for service connection of poliomyelitis as secondary to service- connected residuals of a tonsillectomy. 38 U.S.C.A §§ 1101, 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The evidence before the Board includes some of the appellant's service medical records, encyclopedia photocopies, VA examination report dated December 1992, personal hearing testimony, and medical textbook photocopies. A review of the available service medical records reflects that the appellant had a tonsillectomy and adenoidectomy in her childhood. In March, June, and July 1945, the appellant was seen for throat complaints and chronic hypertrophic tonsillitis was found in July 1945. According to separation examination dated September 1945, the appellant underwent a repeat tonsillectomy. Post-service medical records reflect that the appellant was diagnosed with poliomyelitis in August 1949. In July 1991, the appellant requested service connection for residuals of a tonsillectomy and poliomyelitis as secondary to residuals of a tonsillectomy. She indicated that she believed the repeat tonsillectomy performed in July 1945 during service compromised her immunological system which made her susceptible to the poliomyelitis she later contracted. Also in July 1991, the appellant, through her sworn representative, indicated that the physicians, who had reportedly indicated the existence of a causal relationship between the removal of tonsils and poliomyelitis, were deceased. The medical publication excerpts also submitted reflect that the poliovirus is primarily an infection of the gastrointestinal tract which is acquired by oral ingestion and passed by contact with contaminated feces or oral secretions. It was noted that pregnant woman and persons in contact with children under two years old have increased susceptibility to the poliovirus. Other medical publication excerpts reflect that tonsils function as a barrier to infection; it was also noted that chronically infected tonsils lose the ability to act as a barrier to infection. By rating action dated September 1992, the appellant was service connected for residuals of a tonsillectomy at the non-compensable disability level. She was denied service connection for poliomyelitis as secondary to service-connected residuals of a tonsillectomy. In a statement dated October 1992, the appellant argued that, because she had been told by her family doctor that tonsils help to prevent infections, she did not want her tonsils removed in service. She further indicated that she had a high grade fever at the time she had her tonsillectomy in 1945. After the tonsils were removed, the appellant reported that she had a high fever, headaches, and hemorrhaging. She maintained that were it not for the removal of her tonsils she would not have developed poliomyelitis. On VA examination in December 1992, the appellant reported that she had a number of episodes of tonsillitis, possibly representing Strep throat, prior to service which was treated with penicillin. She further reported that she had another episode of tonsillitis in about July 1945 during service. At that time, her tonsils were removed due to acute tonsillitis. The appellant indicated that she developed poliomyelitis in August 1949 from which she gradually recovered with some residual effects. Clinical findings primarily reflect significant right upper and lower extremity weakness and lesser left sided weakness. The appellant was diagnosed with poliomyelitis in 1949, spinal in type, with no evidence of bulbar polio, although a right lower facial weakness was noted to be possibly related. She was also diagnosed with probable progressing post-polio syndrome. The examiner indicated that he was not aware of any studies which definitively link a history of tonsillectomy with the development of spinal polio years later. In January 1993, the appellant reiterated her belief that she developed poliomyelitis as a result of the tonsillectomy in service. She also submitted additional medical publication excerpts which she annotated. In March 1993, a personal hearing was conducted at VARO. The appellant along with her husband testified that her tonsils had been removed against her wishes in service, and that she developed poliomyelitis as a consequence of missing tonsils. The appellant indicated that her family doctor told her not to have her tonsils removed if another pair grew back because the tonsils provided protection against germs. Testimony revealed that there was a terrible epidemic of polio in the State of Maine in 1949, as well as in the appellant's community, and that the appellant was pregnant with her second child at the time she contracted the poliovirus in August 1949. The appellant also testified to the extent of the residuals of polio and the affect on her day-to-day life. Analysis The threshold question to be answered at the outset of the analysis of any case is whether the appellant'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). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A § 5107(a) (West 1991). Under pertinent VA regulation, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. 38 U.S.C.A. 5107(a). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the appellant is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. (1993). In this case, the appellant's evidentiary assertions as to the claim of service connection for poliomyelitis as secondary to service-connected residuals of a tonsillectomy is inherently incredible when viewed in the context of the total record. The appellant claims that the development of poliomyelitis after service discharge was a result of having had a tonsillectomy in service. A review of the evidence of record shows that the appellant underwent a repeat tonsillectomy in service for an acute case of chronic tonsillitis; however, post-service medical records are negative for a relationship between the onset of poliomyelitis and the appellant's prior tonsillectomy. In addition, while the medical publication excerpts submitted by the appellant show that tonsils act as a barrier to infection, they also reflect that tonsils are useless when they are infected, and moreover, are entirely negative for a possible etiological relationship between the development of poliomyelitis and a history of tonsillectomy. Rather, they indicate that pregnant women and persons in contact with young children are at greater risk of contracting the poliovirus. We note that sworn testimony of the appellant reflects that she was pregnant with her second child at the time she was diagnosed with poliomyelitis, and that the incidence of polio in her community was of epidemic proportions. Furthermore, the examiner at the VA examination in December 1992 indicated that he knew of no studies which definitively link the development of poliomyelitis and tonsillectomy years earlier. In view of the above, the Board finds that the objective evidence of record does not support a causal relationship between the appellant's poliomyelitis and her service-connected residuals of a tonsillectomy. As noted above, to establish secondary service connection there needs to be a showing that the disability for which service connection is sought is proximately due to or the result of a service-connected disease or injury. While the poliomyelitis in 1949 is acknowledged, there is no objective evidence of medical causality related to the appellant's service- connected tonsillectomy, and as such, the claim is not well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994). The Board has considered the appellant's statements with respect to a relationship between her poliomyelitis in 1949 and tonsillectomy in service. However, she lacks the medical expertise to enter a judgment regarding a medical relationship between the development of poliomyelitis and any service- connected disability. The Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Where there is no medical evidence of the claimed disorder during service, or where there is no medical evidence linking the claimed disorder to service or an in-service event, the claim is not well grounded. See Fields v. Derwinski, 90-933 (U.S. Vet. App. Dec. 2, 1991). Accordingly, in view of the above, the undersigned concludes that evidence sufficient to establish that the claim to service connection for poliomyelitis as secondary to service-connected residuals of a tonsillectomy is well grounded has not been presented. ORDER Having found the claim not well grounded, the appeal of service connection for poliomyelitis as secondary to the appellant's service-connected tonsillectomy is dismissed and the VARO rating decision of September 1992 from which this appeal arose is vacated. C.P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.