Citation Nr: 0006717	
Decision Date: 03/13/00    Archive Date: 03/17/00

DOCKET NO.  98-18 241	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Entitlement to service connection for a postoperative 
herniated disc at L5-S1.  

2.  Entitlement to service connection for a right leg 
disability.  

3.  Entitlement to service connection for a right knee 
disability.  

4.  Entitlement to service connection for a right hip 
disability.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Dean


INTRODUCTION

The appellant had active service from July 1952 to June 1954.  

This matter comes to the Board of Veterans' Appeals (Board) 
from rating decisions by the Nashville Regional Office (RO) 
of the Department of Veterans Affairs (VA).  In January, 
2000, the appellant and his representative appeared at a 
Board hearing held at the RO.  They also appeared at a 
hearing held at the RO in November 1998.   


FINDING OF FACT

The claim seeking service connection for a post-operative 
herniated disc at L5-S1 is plausible and capable of 
substantiation.  


CONCLUSION OF LAW

The claim seeking service connection for a post-operative 
herniated disc at L5-S1 is well grounded.  38 U.S.C.A. 
§ 5107(a) (West 1991).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1110, 1131 (West 1991).  The aforementioned 
factual basis may be established by medical evidence, 
competent lay evidence, or both.  38 C.F.R. § 3.307(b).  

In general, lay witnesses, like the appellant, are only 
competent to testify as to factual matters, such as what 
symptoms an individual was manifesting at a given time; 
however, issues involving medical causation or diagnosis 
require competent medical evidence.  Espiritu v. Derwinski, 
2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 
(1993).  Of course, service connection can be granted for any 
disease diagnosed after discharge from service when all of 
the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  
38 C.F.R. § 3.303(d).  

In addition, a claimant is always obliged to present evidence 
of a well-grounded claim; that is, a plausible claim, one 
which is either meritorious on its own or capable of 
substantiation.  Murphy v. Derwinski, 1 Vet. App. 78 (1990).  
Moreover, a well-grounded claim must be supported by 
evidence, not just allegations.  Tirpak v. Derwinski, 2 Vet. 
App. 609 (1992).  If a claim is not well-grounded, then no 
duty to assist the claimant in the development of that claim 
attaches to VA.  38 U.S.C.A. § 5107(a).  

The U. S. Court of Appeals for Veterans Claims (the Court) 
has held repeatedly that, in order for a claim seeking to 
establish service incurrence of a disability to be considered 
plausible, there must be competent evidence of a current 
disability; of incurrence of a disease or injury in service; 
and of a relationship or "nexus" between the current 
disability and an injury or disease incurred in service or 
some other manifestation of the disability during service.  
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Caluza v. 
Brown, 7 Vet. App. 498, 506 (1995).  

In this case, many of the service medical records are 
currently unavailable.  Computerized collateral records from 
the Office of the Surgeon General and unit Morning Reports 
document that the appellant was hospitalized for treatment of 
a right knee strain in late January 1953.  The reported 
diagnosis was injury to the cartilage and ligaments of the 
knee joint; he returned to duty on February 14, 1953.  

The report of the appellant's separation medical examination 
in June 1954 is completely negative for any indication of the 
claimed disabilities.  

Private medical records dating from December 1964 reflect a 
hospital admission for the appellant's complaints of back and 
right leg pain since taking up bowling a few months earlier.  
The medical history recorded at that time also included an 
alleged injury to the back and right hip in service in 1953, 
with intermittent low back trouble ever since.  A lumbosacral 
myelogram disclosed a herniated disc at L5-S1 on the right, 
and a lumbar laminectomy at L5-S1 was subsequently performed.  

In June 1978, the appellant was admitted to a private 
hospital complaining of back pain since suffering trauma to 
the lumbar back about three weeks previously.  He was 
prescribed bed rest and traction; he responded to this 
treatment and was discharged from the hospital after six 
days.  The reported diagnosis was lumbosacral back strain.  

In May 1998, N.J. Reinhart, D.C., reported that the appellant 
had been her patient since March 1998.  The appellant gave 
her a medical history which included the 1953 injury in 
service and the 1964 low back surgery, but which omitted the 
reinjury to the low back in 1978.  Lumbar x-ray studies 
reportedly demonstrated multiple misalignments, osteophytic 
spurring with apparent fusion on the right lateral aspect of 
L4-L5, moderate-to-severe disc space narrowing at L4-L5 and 
at L5-S1, intervertebral foraminal occlusion at L5-S1, and 
diffuse generalized osteoarthritis throughout the lumbopelvic 
region.  There was also an L4 subluxation on L5, causing 
lateral list toward the right from L4 up.  It was Dr. 
Reinhart's opinion, based upon her discussion of the original 
injury with the appellant, that there was a continuity of 
symptoms over time and a consistency between his current 
condition and what long-term effect that type of injury would 
generally have on sacral joints.  

It is true that the aforementioned medical opinion is based 
on an incomplete and somewhat inaccurate account of the 
appellant's medical history.  There is no objective medical 
record of a low back injury in service, just a right knee 
injury (although both the appellant and a service comrade 
have asserted that he injured his back at the same time).  
There is also no objective demonstration of intermittent low 
back pain from 1953 to 1964, and the appellant has testified, 
under oath, that he was relatively untroubled for many years 
after service, until he took up bowling shortly before his 
1964 surgery.  Finally, the appellant made no mention of the 
1978 reinjury to the low back in recounting his history to 
Dr. Reinhart, whose reported findings are much more extensive 
than the single herniated disc found at L5-S1 on the right in 
1964.  However, as the Board has formed a high opinion of the 
appellant's probity and truthfulness, this appears to be the 
result of confusion and inattentiveness by the appellant, 
rather than a desire to mislead.  Also, the medical history 
known to Dr. Reinhart was incomplete, rather than totally 
inaccurate.  

Accordingly, the medical statement by Dr. Reinhart appears to 
be sufficient to well ground the claim under 38 U.S.C.A. 
§ 5107(a) in view of the presumption of credibility which 
attaches to it solely for this purpose.  See King v. Brown, 
5 Vet. App. 19, 21 (1993).  Determinations regarding the 
weight and credibility of evidence are inapplicable at the 
well-grounded stage of adjudication.  Wandel v. West, 11 
 Vet. App. 200, 206 (1998).  


ORDER

The claim seeking service connection for a post-operative 
herniated disc at L5-S1 is well grounded.  


REMAND

The Board notes that the RO's initial request in August 1997 
to the National Personnel Records Center (NPRC) for the 
appellant's service medical records produced only the report 
of his June 1954 separation medical examination.  There was 
no mention that the Board can find of fire-related damage, as 
asserted in the statement of the case.  A second request in 
August 1998 pertained only to morning reports and other 
collateral records.  Mindful of a recent decision by the U.S. 
Appellate Court for the Federal Circuit in which it was held 
that a single request by VA to the NPRC for pertinent service 
medical records is not sufficient to fulfill the duty to 
assist, the Board believes that another search should be made 
for the missing service medical records.  See Hayre v. West, 
188 F.3d 1327 (Fed. Cir. 1999).  

As noted previously, the Board still has reservations 
concerning the proper weight to be accorded Dr. Reinhart's 
May 1998 medical opinion concerning the claimed low back 
disability; thus, an additional medical opinion as to the 
merits of this claim, based on a review of all of the 
relevant medical records, would be of great assistance to the 
Board.  

As for the three remaining issues, although none of these 
claims is currently shown to be well-grounded, they should be 
held in abeyance pending the results of an additional search 
for the missing service medical records.  In addition, in 
view of the medical documentation of a right knee injury in 
service, the appellant is advised that competent medical 
evidence of a current right knee disability and of a nexus 
between any current right knee disability and any event in 
service would be of great advantage to his claim concerning 
that disability.  See 38 C.F.R. § 3.103(c)(2) (1999); see 
also Costantino v. West, 12 Vet. App. 517 (1999).  

Accordingly, this appeal is remanded for the following 
development:  

1.  The RO should again request that the 
NPRC make an additional, special search 
for the appellant's missing service 
medical records.  If they still cannot be 
located, see Dixon v. Derwinski, 3 Vet. 
App. 261, 263-64 (1992) for additional 
procedural requirements in this 
situation.  

2.  The RO should schedule the appellant 
for a VA orthopedic examination of his 
low back.  The claims file must be 
provided the examiner for review in 
conjunction with this examination, and 
the examiner is requested to provide an 
opinion concerning the relationship, if 
any, between the appellant's current low 
back disabilities, and the low back 
injury in service which the appellant and 
a service comrade have described.  The 
examiner should note that objective 
documentation of this injury is lacking 
in the relevant medical records obtained 
so far.  The examiner should also provide 
an assessment of the May 1998 medical 
opinion of Dr. Reinhart.  

If the benefits sought are not granted, the appellant and his 
representative should be furnished an appropriate 
supplemental statement of the case and provided an 
opportunity to respond.  In accordance with proper appellate 
procedures, the case should then be returned to the Board for 
further appellate consideration.  The appellant need take no 
further action until he is so informed, but he may furnish 
additional evidence and/or argument on pending matters while 
the case is in remand status.  Kutscherousky v. West, 12 Vet. 
App. 369 (1999).  



		
	J. F. GOUGH
	Member, Board of Veterans' Appeals