BVA9503058 DOCKET NO. 93-11 540 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of malaria. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had certified active service with the Merchant Marines from December 8, 1944, to May 1, 1945, on the SS Wagon Box; and from June 22 to August 1, 1945, and from August 2 to August 15, 1945, on the SS William M. Meredith. The veteran filed his initial claim for compensation benefits in 1990. This appeal is taken from a rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in January 1991. The veteran provided testimony at a personal hearing held at the RO in July 1992, a transcript of which is of record. CONTENTIONS OF APPELLANT ON APPEAL In substance, it is argued that although the veteran had polio as a child and was shown to have scoliosis at the time he entered active duty, two injuries while on active duty served to aggravated his preservice back problems to the point where he was required to have a fusion soon after separation from service. He also argues that he had malaria in service, was found to have malarial parasites after service, and that recurrent fevers have continued to present and are attributable to the malaria contracted in service. It is requested that all doubt be resolved in the veteran's favor. 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 veteran's claim for service connection for a back disorder and malaria is not well-grounded. FINDINGS OF FACT 1. The veteran has not submitted competent medical evidence or made competent evidentiary assertions, pertaining to whether he sustained a back disorder during service or aggravated a preexisting back problem to justify a belief by a fair and impartial individual that the claim of service connection for a back disorder is plausible. 2. There is no evidence or medical opinion that the veteran has residuals of malaria of service origin. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a back disorder is not well-grounded. 38 U.S.C.A. § 5107(a)(West 1991). 2. The veteran's claim for service connection for residuals of malaria is not well-grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Both the veteran and the VA have undertaken extensive searches for additional service records including ones archived by the Public Health Service, National Archives as related to specific ships, from pertinent individual military facilities. The veteran has provided extensive clinical evidence (approximately 300 pages) relating to his post-service care. With regard to the appellate issues, the Board is satisfied that no pertinent additional records are reasonably available. Back Disorder In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11(1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). If the veteran's claim is not well ground, it does not present a law or fact over which the Boa has jurisdiction. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(West 1991). The quality and quantity of evidence required to meet this statutory burden [to submit a well grounded claim imposed by 38 U.S.C.A. § 5107(a)] of necessity depends upon the issue presented by the claim. Where the issue is factual in nature, e.g. whether an incident occurred in service, competent lay testimony (including a veteran's solitary testimony) may constitute sufficient evidence to establish a well grounded claim under § 5107a). See Cartwright 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, 81 (1990). A claimant would not meet this burden imposed by § 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet.App. 91, 92-92 (1993). In order to establish a well-grounded claim, the appellant must submit evidence of disease or injury of the back in service ultimately resulting in the present back disorder. In attempts to submit a well-grounded claim, the appellant has submitted in excess of 300 pages of lay and medical documents. The lay documents include a July 1990 statement from his sister which was to the effect that the veteran was in St. Francis Hospital in 1946-7 for a spinal fusion, and was cared for during that time by Dr. Virgin, an orthopedic surgeon. He underwent spinal fusion to relieve compression of the spinal cord which was causing a deformity, and that he was in extended traction for many months prior to the surgery. A sister-in-law stated that she had visited him several times in 1946-1947 when he was at St. Francis Hospital, and that he had been in traction for about a year before having an operation on his spine. Also of record is a letter from a priest, a friend of the veteran, the intent of the letter being to cheer the appellant during his confinement. None of these statements indicate that the veteran was receiving treatment was for an injury which occurred during service. Other records submitted by the veteran include records from various private physicians and medical facilities, dated beginning in 1960. The facilities include Presbyterian Hospital, Southern Medical Group, South Miami Hospital, American Hospital, Baptist Hospital of Miami, Inc., Miami-Dade General Hospital, Mercy Hospital, Bruce M. Schlecter, M.D., Doctor's Hospital, Coral Gables Orthopaedic Associates, Emory University Clinic, Charles E. Virgin, M.D., Edward L. Reid, II, M.D., Mark P. Brodersen, M.D., Alexander Schirger, M.D., Robert T. Salzman, M.D., Wayne E. Tobin, M.D., Thomas E. Whitesides, Jr., M.D., Scott L. Gold, M.D., I.B. Keller, M.D., Barry A. Mills, M.D., Holmes Regional Medical Center, Melbourne Neurologic, Broward NMR, Inc., Rockdale County Hospital, Space Coast Orthopaedic Center, Wuesthoff Memorial Hospital, Buffalo General Hospital, Buffalo Medical Group, Inc., Melbourne Internal Medical Associates, University of Miami Medical School, David E. Wells, M.D., Florida Hospital, Health Care at Home, Brevard Orthopaedic Clinic, Gary M. Weiss, M.D., Humana Hospital-Sebastian, Sea Pines Rehabilitation Hospital, and the Melbourne Rehabilitation Medicine. These records follow the treatment for various disorders, particularly his back problems beginning in 1960. During hospitalization at Presbyterian Hospital in 1960, the veteran said he had poliomyelitis in 1934 and that he "fell down hatch of a ship during war, fractured ribs, left arm" and had had a spinal fusion in 1946 at St. Francis Hospital. When hospitalized at Presbyterian Hospital in January 1962 he said that in 1945, he "fell down the hatch of an LST and fractured several ribs on each side". In a 1962 record from the South Miami Hospital, it was reported that he had undergone surgery many years earlier due to increased kyphotic curve as the result of polio. A 1975 statement from the Miami-Dade Hospital noted that he had difficulty with the lower neck resulting from childhood polio. A cervical fusion was performed by Dr. Virgin to relieve the problem. A 1975 report from the South Miami Hospital was to the effect that cervical fusion had been performed in 1949 for a post-polio problem. A 1976 report from the Mercy Hospital noted a past history of thoracic effusion from polio or injury during the war. A 1977 report from Doctors' Hospital noted a cervical spine fusion years earlier as a result of poliomyelitis. A 1984 report from Holmes Regional Medical Center includes a history of polio as a child. After treatment, the veteran participated in high school sports, entered the merchant marines and had no problems, in 1948 was involved in a motor vehicle accident and injured his cervical spine, and underwent fusion with fair results. The only service document of record relating to the time proximate to the veteran's active duty was a preliminary examination, dated June 6, 1944, prior to entrance on active duty. Defects noted included scoliosis to right, probably compensatory following infantile paralysis. Lordosis was also noted. It was remarked that the scoliosis was moderate and not sufficient to incapacitate him in performance of duty. The veteran's post-service descriptions of inservice accidents include, as recorded, a transcript of his testimony given at the personal hearing at the RO in 1991. The veteran testified that he had polio as a child; that he had been turned down by the Navy but was accepted by the Merchant Marine; and when he entered the service, they noted his back condition, scoliosis, which was considered moderate but not severe enough to limit his duties. Transcript, hereinafter Tr. 5. The veteran testified that he had two traumatic incidents while on active duty. The first incident had been when he was on the SS Wagon Box, a tanker, in February 1945; they were tied up to an oil dock, and there was no gangplank, so he jumped from one ship to the other, and missed. Thereafter, as an officer, he was sent not to sick call but to his cabin and relieved of duty for at least a week, and treatment consisted of hot packs. The veteran thought that the armed guard records might show the incident. Tr. at 6. He said there was no follow- up care. The veteran further testified that the second incident occurred in June 1945, when he was in China, when he fell off the gangplank. He reported at that time that thought that he was on the SS Americus. Tr. at 7. The veteran reported that he was on quarters for several days. Tr. at 7. The veteran testified that he did not go back to sick bay thereafter in service for his back, but that he felt his back condition was more pronounced in August 1945 than when he went in. The veteran also testified that he had an auto accident in 1964 or 1965 and then he had to have a second spinal fusion, the first fusion having been done in 1946. Tr. at 9. The veteran reported having been hospitalized for his back a total of from 30-40 times. Tr. at 10. He indicated that at the end of his service period, he was referred by the Public Health Service to see a Navy doctor, who examined him at Mare Island and told him that he was "50 percent disabled right now", and that he had better have his back straightened out of he would be 100 percent disabled. The physician had reportedly referred him to Dr. Virgin who did the surgery in 1946. Tr. at 11. A statement was received from National Archives in May 1991 that the logbook from the SS Wagon Box from December 8, 1944 to May 1, 1945, did not have any entries relating to the incident reported by the veteran; another statement was received from National Archives in October 1992 that a search of the armed guard records for the SS Wagon Box did not show an entry for the veteran at that time. A December 1992 statement from the Navy was to the effect that a search for additional records for the veteran at Mare Island, California, was not successful. Against this background, the Board must decide whether the evidence, including the evidentiary assertions satisfy the requirement for a well-grounded claim. There is no question that veteran has had ongoing back problems since service, some of which are attributable to reinjuries as well as other causes. It is unclear the exact number of post-service automobile accidents in which the veteran has been injured, but the evidence seems to indicate that there have been many, during which occasions the veteran experienced neck injuries. Recent X-rays and other studies and clinical records have shown overall spinal deterioration, residuals of other spinal fusions at several levels, ankylosing spondylitis, rheumatoid arthritis, degenerative disc disease, Reiter's syndrome, and possible post- polio syndrome. The veteran has submitted no competent evidence to support his claim that the back disorder had onset during service. The lay evidence attests to post-service back treatment, and the voluminous medical data likewise does not address the issue of medical causation (i.e., whether an event in service caused or contributed to the present disability). For these reasons, the claim is not well-grounded. As the claim is not well-grounded, the Board is not required to develop it further or to carry it to full adjudication. As for the application of the benefit-of-the-doubt rule, the rule does not ease the veteran's initial burden of submitting evidence of a well-grounded claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Since the veteran has not met his initial burden of submitting a well-grounded claim, the rule does not apply. Since the Board's decision does not reach the merits of the claim, it is not deemed a final decision of the Board. The Board's action here allows the veteran to begin, if he can, on a "clean slate". Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Malaria The initial burden is on the veteran to submit evidence to justify a belief by a fair and impartial individual that the claim is well grounded under 38 U.S.C.A. § 5107(a). A well grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Moreover, although a claim need not be conclusive to be well grounded, by statute, 38 U.S.C.A. § 5107(a), it must be accompanied by evidence. More than just an allegation is required. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The evidence now in the file does not show malaria in service, postservice confirmation of malarial parasites, or any medical opinion that reflects that his symptoms might be due to malaria including of service origin. The only postservice references to malaria other than by the veteran are those recorded by examining physicians in various histories as provided by the veteran when being treated or evaluated for other disorders. The veteran argues that he suffered from and was diagnosed as having malaria in service; that his next attack was in 1948 when he went to college; that he has had confirmed malarial parasites since service, and that repeated episodes of fever to date have been medically attributed thereto. Several post-service clinical records refer to a history of malaria, provided by the appellant. Records of care at Jackson Memorial Hospital, where the veteran has indicated malarial smears were positive in 1960 or thereabouts, are not available. On a recent occasion, the veteran had a low grade fever associated with what was thought be pneumonia. There is no evidence in the file of repeatedly recurrent fevers of unknown origin. The veteran has opined that he had malaria in service and since, but he, as a lay person, is not qualified to determine medical causation or provide diagnoses. See Espiritu v. Brown, 2 Vet.App. 492 (1991). In reaching its decision, the Board has taken into consideration the veteran's claim in all its facets, as well as the evidence of record, which appears to encompass all that is reasonably available regarding the period from service until present, relating to malaria. While the veteran says he had malaria problems in and shortly after service and since, his claim is not confirmed by contemporaneous medical records. In the absence of a diagnosis of malaria, and absent any medical opinion associating any symptoms such as fever with any incident or disease in service, the Board finds that the veteran's claim for service connection for malaria is not well-grounded and therefore must be dismissed. 38 U.S.C.A §§ 1110, 5107. As for the application of the benefit-of-the-doubt rule, the rule does not ease the veteran's initial burden of submitting evidence of a well-grounded claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Since the veteran has not met his initial burden of submitting a well-grounded claim, the rule does not apply. Since the Board's decision does not reach the merits of the claim, it is not deemed a final decision of the Board. The Board's action here allows the veteran to begin, if he can, on a "clean slate". Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). ORDER The veteran's claim for service connection for malaria and a back disorder is dismissed. RENÉE M. PELLETIER 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.