BVA9505666 DOCKET NO. 93-07 031 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a chronic (musculoskeletal) back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from March 1943 to November 1945. This appeal arose from a rating decision of December 1991 of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington which denied service connection for a back disability on a direct, presumptive and secondary basis. The decision was based on findings to the effect that arthritis of the lumbar spine was not shown until many years after service; and that the arthritis of the lumbar spine was not caused by or related to the service connected appendectomy residuals. A hearing was held on September 9, 1993 in Huntington, West Virginia, before Nancy I. Phillips, a member of the Board of Veterans' Appeals (Board) who is rendering this decision and who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991). At the hearing, testimony and argument were presented on the issue of service connection for skin growth of the back secondary to the service connected appendectomy residuals. The issue which had been developed and is certified on appeal had clearly involved only a musculoskeletal back disorder, and not a skin disorder. The Board is of the opinion that the skin growth issue is separate from the issue properly before the Board, and is not inextricably intertwined with that issue because adjudication of the one issue will not affect the adjudication of the other. Accordingly, the issue of service connection for the skin growth of the back is referred to the RO for adjudication and all development deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL It is argued that the veteran has a chronic back disability caused by improper treatment of a ruptured appendix in service; and that he had made complaints about his back since his separation from service, first, to private physicians who are now deceased, and, second, to VA since 1968. It is requested that a VA examination be performed to obtain additional information about the nature and etiology of the back disorder. 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(s). 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 preponderance of the evidence is against the claim of entitlement to service connection for a musculoskeletal back disability on a direct or presumptive basis; and that the claim of secondary service connection for the musculoskeletal back disability is dismissed as not well grounded. FINDINGS OF FACT 1. All evidence necessary for an equitable determination of the direct or presumptive service connection claim is associated with the claims file. 2. A chronic musculoskeletal back disability was not present until many years after service. 3. There is no probative evidence linking a chronic musculoskeletal back disability to any incident of service or to the service connected appendectomy residuals. CONCLUSIONS OF LAW 1. A chronic musculoskeletal back disability was not incurred or aggravated in service, and arthritis of the back may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 2. The veteran has not presented a well-grounded claim for secondary service connection for a musculoskeletal back disability. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Persons who claim VA benefits have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that their claims are well grounded. 38 U.S.C.A. § 5107 (a). A claim is well grounded because it is plausible; it is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 81 (1990). VA shall grant service connection for disability resulting from personal injury suffered or disease contracted in active service, 38 U.S.C.A. § 1110, or for disability proximately due to or the result of service connected disease or injury, 38 C.F.R. § 3.310 (a), or, in the case of arthritis, if the disease is manifested to a degree of 10 percent or more within one year of separation from service, 38 U.S.C.A. §§ 1101, 1112, 1137. In the case of a veteran who engaged in combat with the enemy, VA shall accept as sufficient proof of service incurrence satisfactory lay or other evidence if consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154 (b). In this case, service connection is in effect for appendectomy, rated as noncompensable. The service medical records show that the veteran was hospitalized from September to November 1943 for treatment of acute suppurative appendicitis, to include appendectomy and then incision and drainage of a cecal abscess. Approximately two weeks after he was discharged from the hospital to duty, he complained of backache. Over the following two weeks, he complained of pain at the site of the old postoperative scar. On examination in November 1945 for separation from service, there were no musculoskeletal defects and no complaints with respect to the back. A VA claim for compensation or pension for disability due to active service which was filed by the veteran in November 1945 was based on a disability other than the back. Reports of VA examinations in September 1947 reflect right lower quadrant, but not back, pain. He reported as history that he had sought medical treatment for recurrent right side, but not back, pain. Examination showed no articular or muscular abnormalities. A report of VA hospitalization in early 1990 for treatment of unrelated conditions states that on objective examination of the musculoskeletal system, there was no arthritis. VA outpatient records dated later in 1990 and in 1991 reflect back pain with arthritis. A VA Medical Record-Consultation in 1991 states that the veteran related all of his back pain to the appendectomy in service, and, in particular, to the spinal anesthetic. At the hearing in 1993, the veteran testified under oath that he had always had back pain since the appendix surgery in service; that his wife of 51 years could verify that he had had back problems for 51 years; and that he would be unable to provide other corroborative evidence of continuity of symptomatology because the physicians who treated him are deceased. We find that the claim for direct or presumptive service connection is plausible, and, therefore, is well grounded. We are also of the opinion that all facts pertinent to the claim have been developed. With respect to the requested VA examination, the veteran has already undergone VA outpatient evaluation which is sufficient to establish the nature of the condition. We do not consider that a current examination would add any probative evidence to the record. With respect to any VA medical records from 1968, that is, beginning more than 20 years after service, such records will also not shed any light on whether the back condition is related to service. The veteran's medical record is significant for a reference to backache during service. However, the separation examination approximately 2 years later shows no complaints with respect to the back, or, for that matter, any abnormality of the back. Moreover, the claim based on service connected disability which the veteran filed at about this time also makes no mention of a back disability. Similarly, the reports of VA examinations two years later still reflect no complaints or abnormality with respect to the back. And on this occasion, the veteran did not report medical treatment for the back. It was not until many years after service that we have objective evidence of a back disability. As summarized above, there is a single complaint of back pain in service, and then the contemporary medical record is silent with respect to the back until many years later. This lengthy interval includes examinations at separation and two years later at which time no back abnormality was shown or claimed. The veteran argues, and has testified, that this was not the case. He maintains that there was continuity of back symptomatology. We do not find his testimony credible in this regard because it is not corroborated by the contemporary record. Had there been continuity of back symptomatology from the time of the inservice hospitalization in 1943, we would expect to see that symptomatology reflected on the service separation examination or on the examinations two years later. Had there been medical treatment for the back after separation, we would expect to see that history reflected on the examinations two years after service. Instead, we find history of treatment for an unrelated condition. Finally, the fact that the veteran did not claim service connection for back disability until long after service argues against his claim of continuity of back symptomatology from service. Because the contemporary record, including the contemporary medical record, either fails to corroborate or contradicts the veteran's assertions, we find those assertions to be less probative that the contemporary record with respect to whether chronic back disability had its onset in service, or, with respect to arthritis, within one year of separation from service. Neither in-service chronicity nor continuity of back symptomatology from service is established by satisfactory evidence, that is, by credible evidence. We are unable to conclude from the record that complaints in service represented the onset of chronic disability. With respect to the secondary service connection claim, the veteran believes that his back problems were caused by the inservice appendectomy surgeries. As a lay person, he is not considered competent on questions of medical etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Nor has there been submitted any competent evidence in support of the claim. In the absence of such evidence, the claim that the back disability was caused by the appendix surgeries is not plausible, and, therefore, is not well-grounded. See King v. Brown, 5 Vet. App. 19 (1993). Since a well grounded claim has not been submitted, no assistance to the veteran, in the form of VA examination, is mandated. ORDER The claim for service connection for a chronic musculoskeletal back disability on a direct or presumptive basis is denied. The claim for secondary service connection for a chronic musculoskeletal back disability is dismissed. NANCY I. PHILLIPS 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.