Citation Nr: 0004755 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 98-08 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for mechanical low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from October 1983 through October 1987. Thereafter, the veteran had service with the National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 1996 rating decision of the Department of Veterans' Affairs (VA) Regional Office in Muskogee, Oklahoma (RO) which denied the benefit sought on appeal. By decision dated August 1999, the Board REMANDED the case for additional development, and the case has been returned to the Board for appellate review FINDING OF FACT There is no competent medical evidence of a nexus between a current back disorder and service, including any incident that occurred therein. CONCLUSION OF LAW The veteran's claim for entitlement to service connection for mechanical low back pain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he is entitled to service connection for mechanical low back pain, which resulted from an injury sustained during his period of active service. Specifically, the veteran relates that he sustained a back injury as a result of a parachute jump in April 1984. The VA may pay compensation for "disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service." 38 U.S.C.A. § 1110 (West 1991). Pursuant to 38 U.S.C.A. § 101(24) (West 1991), active military service "includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." The threshold question that must be answered in the instant case, however, is whether the veteran has presented a well- grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 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). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). A claimant may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that same condition currently exists. Such evidence must be medical unless the condition at issue is one which, under case law, lay observation is considered competent to prove its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation 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. See Savage v. Gober, 10 Vet.App. 488, 495-98 (1997). Service medical records show that at the time of his entrance examination in May 1983, the veteran gave no history or complaint of experiencing back pain. In March 1984 the veteran was treated for back pain and he gave a history of experiencing back pain for seven years. The veteran had normal range of motion and no spasms were noted. He was referred to physical therapy for strengthening exercises. A May 1984 treatment record shows that the veteran was diagnosed with chronic paravertebral muscle pain. In April 1986, the veteran was diagnosed with mechanical low back pain. No notations were made at either of these times regarding the etiology of the veteran's back pain. A September 1987 treatment record shows that the veteran complained of a painful nodule in the right lower back, however, a discharge examination dated September 1987 does not reveal that the veteran reported that he was experiencing any back pain. Post-service medical records show that the veteran sought treatment for back pain from Chiropractic Doctors, Inc. in Tulsa, Oklahoma from March 1988 through June 1992. The veteran reported neck, middle and lower back pain and numbness in his left hand, fingers and arm. No notations were made regarding the etiology of the veteran's back pain. An October 1989 Army National Guard enlistment examination shows that the veteran reported that he had recurrent back pain. He also reported a prior injury sustained during a parachute jump with symptoms resolving within one month. A periodic examination performed in September 1993 reflects that the veteran's back was normal and in the Report of Medical History, the veteran indicated that he did not have recurrent back pain. Treatment records from Medical Care Associates in Tulsa, Oklahoma dated October 1992 to October 1995 show that the veteran presented with complaints of chest and back pain. He also reported occasional numbness and tingling in his left hand. The veteran indicated that his symptomatology was caused by an injury that he sustained during his period of active service. Specifically, he stated that during French Commando Training, he was crossing a wire and slipped injuring his sternum. He indicated that he first became aware of his back pain in approximately October 1991. The records do not include a medical opinion regarding the etiology of the veteran's back pain. A VA examination performed in August 1998 reflects that the veteran gave a history of injuring his back during a parachute jump in 1984 while in the Army. The veteran reported that he had moderate, constant back pain. He also indicated that bending, extreme twisting, lifting or other forms of overexertion aggravated his back pain. The veteran stated that he was seeking treatment from a chiropractor to get some relief. The VA examiner diagnosed the veteran with chronic thoracic spine strain and chronic lumbosacral spine strain. Again, no medical opinion was given regarding the etiology of the veteran's back pain. By letter dated August 1999 and pursuant to the Board's REMAND of August 1999, the RO requested the veteran to provide authorizations in order for the RO to obtain treatment records from the chiropractor mentioned by the veteran during the August 1998 VA examination. The veteran was also to provide information regarding any other health care provider from whom he had received treatment for his back since his separation from service. The veteran was advised that he should provide the aforementioned information to the RO within 60 days. An October 1999 deferred rating decision indicates that the veteran and his representative failed to respond to the RO's request for information regarding the veteran's medical treatment. As such, this matter was returned to the Board for further appellate review. Initially, the Board notes that the veteran and his representative argue that the Board should remand this matter to the RO, for the issuance of a Supplemental Statement of the Case (SSOC), as the RO did not issue an SSOC after the veteran and his representative failed to respond to the August 1999 request for information. However, 38 C.F.R. § 19.31 (1999) provides that an SSOC should be furnished when additional pertinent evidence is received after a Statement of the Case (SOC) has been issued; when a material defect in the SOC or prior SSOC is discovered; when an SOC or prior SSOC is deemed inadequate, or where the RO has completed additional development pursuant to a Board remand. Because the RO did not obtain any new or additional evidence on remand, the Board finds that it was not necessary for the RO to issue an SSOC in this matter and a remand is therefore not required. A review of the evidence of record shows that the veteran has established that he has a current back disability, but he has failed to submit competent medical evidence which provides a nexus, or link between his current back disability and any period of active service. Even though the record shows that the veteran experienced back pain in service and that he currently has back pain, there is no opinion of record linking the veteran's current back pain to the back pain that he experienced during service. While the veteran clearly believes that his back disorder is related to service, as a lay person, he is not competent to offer an opinion that requires medical expertise, such as the cause or etiology of his back disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the absence of medical evidence of a nexus or relationship between the current disability and service, the veteran has not submitted a well-grounded claim for service connection and his claim must be denied on this basis. Because the veteran failed to meet his initial burden of submitting evidence of a well-grounded claim for service connection, the VA is under no duty to assist him in developing the facts pertinent to this claim. See Epps, 126 F.3d at 1468. As the Board is not aware of the existence of additional evidence that might well-ground his claim, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a)(1998); McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views its discussion as sufficient to inform the veteran of the elements necessary to well ground his claim and to explain why his current attempt fails. ORDER Evidence of a well-grounded claim not having been submitted, service connection for mechanical low back pain is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals