Citation Nr: 0007234 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 96-42 137A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant his spouse, and J. Sammon ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The veteran served on active duty from February 1942 to September 1945. This case initially came before the Board of Veterans' Appeals (Board) from a rating decision of July 1995 from the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for a back disorder. By means of a Remand dated in February 17, 1999, the Board requested additional RO development of the issue. In an August 1999 supplemental statement of the case, the RO provided notice of continued denial of service connection for a back disorder, following additional development and consideration of the issue, as requested by the Board in its remand. The case is now returned to the Board for further consideration. The Board notes that the veteran filed a claim in December 1999 alleging entitlement to service connection for post traumatic stress disorder and in conjunction with this claim submitted a statement reporting stressors and a medical record of psychiatric treatment. The RO sent him a letter in December 1999 informing him that his application was incomplete and advising him of the evidence necessary to complete a well grounded claim. This matter remains pending and is referred to the RO for further development and adjudication. FINDINGS OF FACT 1. The veteran served under combat during World War II and sustained injuries in two separate incidents; he was struck by the recoil of a howitzer gun in August 1944 and sustained shrapnel wounds, buttocks, left, as a result of being wounded in action in April 1945 2. Medical evidence of record reveals that the veteran is suffering from minimal degenerative disc disease of the lumbar spine more likely than not due to aging. 3. No medical evidence has been submitted to show that the veteran is suffering from a back disorder, which began during active duty or is otherwise casually or etiologically related to service or a service-connected disability. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a back disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends, in essence, that he is entitled to service connection for a back disorder. He alleges that his back was injured as a result of a being struck in the back area by shrapnel, for which he is currently service connected for shell fragment wound scars in the left buttock. He also alleges that he injured his back after being pinned against a tank by the recoil mechanism of a 105-mm howitzer during World War II. The threshold question to be answered at the outset of the analysis of any issue 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 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). 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). Evidentiary assertions by the veteran 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. 19 (1993). In order for a claim to be well grounded, there must first be competent medical evidence of a current disability; second, there must be an incurrence or aggravation of a disease or injury in service shown in either competent lay or medical evidence; third, there must be competent medical evidence showing a nexus between the current disability and the in- service incurrence or aggravation of a disease or injury. Caluza v. Brown 7 Vet. App. 498 (1995). Alternatively, the third Caluza element can be satisfied under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). There are some disabilities, including arthritis, where service connection may be presumed if the disorder is manifested to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In addition, service connection may also 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) (1999). Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) the adverse effect of the absence of service clinical records of disability incurred during combat may be overcome by satisfactory lay or other evidence sufficient to prove service incurrence if consistent with the circumstances, conditions or hardships of service and to this end all doubt will be resolved in the veteran's favor. Service connection for such a disability may be rebutted by clear and convincing evidence to the contrary. Furthermore, under 38 C.F.R. § 3.306(b)(2) not only is due regard to be given to the places, types, and circumstances of service, but particular consideration is to be accorded to combat duty and other hardships. Once such evidence is submitted, there is a rebuttable presumption of incurrence or aggravation, but not service connection, which may be overcome by a clear and convincing showing that (1) there was no incurrence, or (2) there was no increase in pre-existing disability, or (3) that any such increase was part of the natural progression of the disability. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). In this case, there is no allegation or showing, by lay evidence or otherwise, of an increase in any pre-existing disability but only of the incurrence of a back disability due to injuries sustained under combat. Factual Background The veteran's January 1942 entrance examination was normal. Service medical records reveal that the veteran was treated for severe contusions of both upper legs, after being struck by the recoil of a howitzer gun he was firing at the enemy in August 1944. His September 1945 separation examination also revealed shrapnel wounds, buttocks, left, as a result of being wounded in action in April 1945. The shrapnel wounds were said not to interfere with function and no other musculoskeletal problems were reported in the September 1945 separation examination. VA treatment notes from July 1953 revealed evidence of back complaints, with the pain in the mid sacral region said to date back to 1944. Lumbosacral X-rays from September 1953 revealed normal findings, however. The report of an August 1961 VA orthopedic examination yielded non-orthopedic findings and the accompanying August 1961 X- rays revealed normal findings of the lumbosacral spine. Private clinic notes revealed that the veteran received chiropractic treatment for complaints of low back pain and left leg pain in August 1983, said to date back 40 years. Back problems were also noted in private clinic notes from August to September 1989 where the veteran was seen for complaints of low back and left leg complaints, which he attributed to "war wounds." A September 1994 VA X-ray report revealed an impression of mild degenerative change of the lumbar spine. In May 1995, a VA examination for scars revealed a 10-mm scar in the upper left buttock, which was pale, well-healed and nontender. When asked to furnish an opinion regarding whether the veteran's shell fragment wound scar to the left buttock was the cause of any functional impairment to the back, the examiner replied that there was inadequate information to furnish such an opinion and that an orthopedic evaluation of the back was necessary, to do so. In February and March 1996, the veteran received epidural steroid injections for his back problems, which were diagnosed as lumbar spondylosis and facet hypertrophy. A letter dated in December 1996, from a private orthopedic surgeon stated that the veteran's back complaints appeared to be primarily arthritic in nature, and that he was unable to determine whether they could be related to combat injuries, although he indicated that was not unreasonable to suspect a past injury provoked the veteran's current complaints. This letter did not indicate whether the veteran's claims file was available for review, but indicated that the medical information available was not sufficient to form an opinion regarding causation. At a hearing held in January 1997, the veteran testified that while serving in combat during World War II, he was subjected to the recoil of a howitzer gun when it struck him in the back and smashed his left leg into a tank. He testified that he was black and blue, but not openly bleeding after this episode. He further testified that he currently has problems with his back and can no longer ride his lawnmower. His wife and friend testified that they were aware that the veteran currently has difficulty moving around and is unable to ride his mower due to back pain. His representative asserted that the service medical records reflect trauma to his back in the records showing contusions from the howitzer gun. In June 1999, pursuant to the Board's February 1999 remand instructions, the veteran underwent a VA orthopedic examination. The history of combat injury was said to have been due to a blow from the back from shrapnel. The examiner also noted that the veteran did not mention the howitzer recoil incident when he related his combat injuries to the examiner. Physical examination findings revealed the veteran to stand erect with a level pelvis and no scoliosis. There was no detectable scar. Range of motion was 40 degrees flexion; 20 degrees extension; 25 degrees right and left lateral bending. This was said to represent a normal range of motion for a 78 year old male. He had no tenderness over the spinous processes. Straight leg raising in the supine position caused low back pain on the right at 45 degrees and low back pain on the left at 60 degrees. In the sitting position, straight leg raising was painless bilaterally. Deep tendon reflexes were active and equal in the knees and ankles bilaterally. He could walk on his heels and toes without assistance. He could squat and arise from the squatting position without help. The examiner could detect no weakness or sensory deficit in the lower extremities. There was no evidence of atrophy present. X-rays were interpreted to reveal scoliosis of one of the pedicles of L5. The film was not marked as to right or left. There were small osteophytes in multiple levels in the lumbar spine. He had no significant narrowing of any of his discs. There were no metallic fragments of shrapnel in the soft tissues or bony skeleton. The impressions rendered included status post blunt shrapnel injury to the lower back and minimal degenerative disc disease as evidenced by only small osteophytes. The opinion forwarded was that the minimal degenerative disc disease was acquired, not congenital. The opinion was that it was not the result of trauma sustained in service. It was more likely the result of aging. The veteran also reportedly made no mention of a howitzer recoil incident, but only mentioned a shrapnel injury, with no evidence of scar or retained metallic fragments shown. The X-ray report from June 1999 noted slight right convexity scoliosis. The vertebral bodies were considerably demineralized. Early hypertrophic degenerative changes were demonstrated throughout the lumbar spine. L4-5 disc spaces were minimally narrow. The sacroiliac joints also appeared unremarkable. No other significant back abnormality was noted. The report from a June 1999 VA aid and attendance examination did not address the issue of his back complaints, but deferred to the orthopedic examination. An August 1999 VA examination was restricted to the eyes. Also submitted in conjunction with a December 1999 claim for service connection for post traumatic disorder was a document showing treatment for problems that did not include back complaints. Additional records obtained as a result of the Board's remand included a private hospital report that noted an admission in November 1998 for low back pain which the veteran related as chronic since being hit by shrapnel in World War II. The Board also remanded the case in February 1999 in order to obtain any available records from the Social Security Administration, but the record reflects that the RO was advised in April 1999 that the veteran's file maintained by that agency was destroyed and therefore, no longer available. Analysis Upon review of the evidence, the Board finds that the veteran has not submitted a well-grounded claim for service connection for a back disorder. It is conceded that the veteran was struck in service by a howitzer gun, which the service medical records documented resulted in contusions to both upper legs, and that service medical records show that he sustained shrapnel wounds to the buttock area, which plausibly supports his claim that he also hurt his back in these incidents. Hence, consideration of his claim under the liberalizing provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) is not actually necessary as the issue of incurrence of these injuries and the reasonably inference that he felt trauma in his back, especially in connection with the shrapnel wound, is not in dispute. These incidents are documented in service records and the Board finds that it is at least plausible that the veteran sustained some trauma to his back as well. However, on this point, a recent decision of U. S. Court of Appeals for Veterans Claims (the Court) held that the term "service connection" as used in section 1154(b) refers to proof of incurrence or aggravation of a disease or injury in service as opposed to the legal standard of establishing entitlement to payments for disability. See Kessel v. West, No. 98-772 (U.S. Vet. App. Sept. 20, 1999) (en banc) (the Court overruled its prior holding in Arms v. West, 12 Vet. App. 188 (1999) to the extent that Arms could be read as establishing or implying in dicta that application of section 1154(b) to the merits of a case could result in the award of service connection without also establishing sufficient evidence of all the elements of service connection, namely, a current disability, causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service). Thus, assuming no clear and convincing evidence to the contrary, section 1154(b) only serves to relax the evidentiary proof standards required to establish service incurrence or aggravation of a disease or injury in service. Id. Evidence of current disability and medical-nexus evidence relating that current disability to the in-service trauma is still required to well ground the claim. Id. However, there is no medical evidence linking the currently diagnosed minimal degenerative disc disease of the lumbar spine to any trauma that occurred in service, nor, in the absence of any chronic disability of the back shown in service, is there any medical-nexus evidence linking continuous symptoms as a result of treatment of back pain complaints in the years after service to any trauma sustained to the back in service. Rather, the medical opinion rendered as a result of the June 1999 orthopedic examination was that based on a review of the evidence in the claims file, see Notice of Temporary Transfer of Veterans Records for purposes of this examination, dated May 13, 1999, the veteran's current disability of the back was more likely than not the result of aging as opposed to the non-penetrating shell fragment wound injury that did not even evidence a scar that the examiner could locate at the time of the examination. The examiner further found no clinical or x-ray evidence showing any retained shrapnel pieces or other abnormal pathology attributable to the old shrapnel wound, and as history of the gun recoil injury was not related by the veteran has an incident that led to back trouble in the years after service, the examiner offered no opinion on the possible relationship between the two. Without evidence otherwise relating his current disability of the back to in-service trauma or showing a nexus by continuous symptoms treated after service stemming from a back disorder noted in service but not shown to be chronic, as in this case, based on acceptance that the shrapnel wound involved some trauma to the back, the veteran has not submitted a well-grounded claim on a direct basis under 38 C.F.R. § 3.303(a) & (b). And since the veteran has failed to present medical evidence showing onset of arthritis in the lower back within the presumptive one-year period after service, as allowed under 38 C.F.R. §§ 3.307, 3.309, this element of his claim is not well grounded as well. Further, a cause-and-effect relationship between the back disorder and a service-connected disability is not established by all the evidence associated with record during the course of this lengthy appeal. Service connection has been established for a shell fragment wound (scar) of the left buttock, however, there is no medical evidence which specifically relates the veteran's back disorder to the old war injury or treatment for same. Hence, the medical evidence does not actually support a secondary service connection theory of entitlement in that there is no evidence suggesting that the war wound or treatment for same caused or aggravates the disorder involving the back presently diagnosed as minimal degenerative disc disease thought to be due to the effects of aging. Moreover, the Board notes that under the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995) (aggravation of non service-connected disability by service-connected disability as a basis for an entitlement under 38 C.F.R. § 3.310(a)), there is no medical evidence which supports a theory that a service-connected disability aggravated the claimed back disorder. See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996) (with respect to medical nexus for well groundedness, the claimant must supply objective medical evidence to support claim). The Board has considered the appellant's contentions and hearing testimony; however, this evidence alone cannot meet the burden imposed by 38 U.S.C.A. § 5107(a) with respect to the existence of a disability and a relationship between the disability and a service-connected disorder. Espiritu, 2 Vet. App. 492 (1992). As indicated above, his lay assertions will not support a finding on medical questions requiring special expertise or knowledge, such as diagnosis or causation of a disease. Id. at 494-95. On the basis of the above findings, the Board can identify no basis in the record that would make this claim plausible or possible. 38 U.S.C.A. § 5107(a); see also Grottveit, 5 Vet. App. at 92, Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); and Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the veteran has not met this burden, the VA has no further duty to assist him in developing facts pertinent to a claim, including no duty to provide a medical examination or solicit further medical opinion. 38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (where the claim is not well grounded, VA is under no duty to provide the veteran with an examination); see also Morton v. West, 12 Vet. App. 477 (1999) (if a well-grounded claim has not been submitted, there is no duty on the part of VA to assist in the claim's full development). VA is obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of the kind of evidence needed to well ground a claim for service connection. Robinette, 8 Vet. App. 69 (1995). However, here unlike the situation in Robinette, the appellant has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim considered herein plausible or well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). The Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). Accordingly, the Board must deny the appellant's claim seeking entitlement to service connection for a back disorder as not well grounded. See Edenfield v. Brown, 8 Vet. App. 384 (1996) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). The Board acknowledges that it has decided the present appeal as to this issue on a different legal basis than the RO did. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the Board concludes that the appellant has not been prejudiced by the decision herein. The Board has considered the same law and regulations. The Board merely concludes that the appellant did not meet the initial threshold evidentiary requirements of a well-grounded claim. The result is the same. ORDER The veteran's claim for service connection for a back disorder is denied as not well grounded. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals