Citation Nr: 0002432 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-20 591 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico THE ISSUES Entitlement to service connection for a back disability. Entitlement to residuals of removal of a fistula . REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from December 1956 to November 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision. FINDINGS OF FACT 1. The record does not contain competent evidence of a nexus between a current back disability and injury or disease during the veteran's active service. 2. The veteran has not presented competent evidence that he currently has residuals of removal of a fistula. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a back disability is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). 2. The veteran's claim for service connection for residuals of removal of a fistula is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law requires that a claimant shall have the burden of submitting a claim that is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The VA benefits system requires more than just an allegation of entitlement. A claimant must submit supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Although the claim need not be conclusive, the statute requires the claim to be accompanied by some evidence. Id. The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996); see also Epp v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The veteran contends that he has back disability and residuals of removal of a fistula removal related to his active service. In particular, he contends that he underwent an operation for a lower back fistula due to a fall down some stairs during his active service. The veteran states in his September 1997 statement that the injury occurred sometime between September or October 1957. He is advised that where the determinative issues involve questions of medical causation or 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). Laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Consequently, lay assertions of medical causation or medical diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 95 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Hence, I find that the veteran's unsubstantiated allegations alone are an insufficient basis on which to establish a well-grounded claims for service connection. The record does not contain any evidence of the presence of a current fistula or residuals of removal of a fistula. Without evidence showing that a disease or disability is present, no plausible claim for service connection can be presented, and the claim is not well grounded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). With respect to the back, the veteran satisfies the initial criterion for establishing a well-grounded claim as there is some competent evidence of current back disability. Reports of treatment dated in 1995 show that the veteran was treated for herniated disc of the lumbar spine. The veteran's service medical records are unavailable. The National Personnel Records Center has reported that they were destroyed in a fire at that facility. The veteran's statements concerning a back injury in service are, however, competent evidence of the incurrence of an injury. This evidence is competent, however, only to the extent that the veteran has articulated information concerning what he experienced, but not with respect to matters involving a determination of medical causation or diagnosis. See Falzone v. Brown, 8 Vet. App. 398 (1995). The veteran has not submitted any competent evidence that would establish a nexus between his current back disability and injury or disease during his active service. I note that a statement from D. Mimoso Gonzalez, M.D., refers to a history of a fall down some stairs during military service. However, the veteran is advised that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence" satisfying the Grottveit requirement for a well-grounded claim. Such evidence cannot enjoy the presumption of truthfulness as to the determination of well groundedness because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A veteran may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), that is applicable where evidence, regardless of its date, shows that a veteran had chronic condition in service or during an applicable presumptive period, and that the same condition currently exists. Such evidence must be medical unless the condition at issue is a type that under case law, lay observation is considered competent to demonstrate 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. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). The veteran's allegations, in effect, suggest continuity of symptoms from service through the present. In this case, however, competent medical evidence is necessary to establish that the continuous symptoms were due to the same disability. Because it would not necessarily follow that there is a relationship between any present disability and continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent. Savage, 10 Vet. App. at 497. In this case, the lay evidence is not competent as to the cause of the back symptoms. In addition, the clinical record shows that the veteran's treatment for back pain related to intercurrent injury incurred in a fall in 1995. In view of the foregoing, the veteran has not submitted a plausible or well-grounded claim with respect to service connection for a back disability or residuals of removal of a fistula. In particular, the veteran is advised that any service medical records in his possession as well as any reports of private treatment showing treatment for his back or for residuals of the claimed fistula removal immediately after his active service might served to establish a well- grounded or plausible claim in this instance. Inasmuch as the veteran did not satisfy the initial threshold of establishing a well-grounded claim, VA has no duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107. Nonetheless, under 38 U.S.C.A. § 5103(a), VA should advise the claimant of the evidence necessary to complete his application. See Robinette v. Brown, 8 Vet. App. 69 (1995). This obligation was successfully completed by the RO in its statement of the case. Likewise, the Board's discussion above informs the veteran of the requirements for the completion of his application for the claims for service connection. ORDER The veteran's claims for service connection for a back disability and for residuals of removal of a fistula are not well grounded. The appeal is denied. MARY GALLAGHER Member, Board of Veterans' Appeals