BVA9504279 DOCKET NO. 93-08 984 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of injuries to the back and spine. 2. Entitlement to service connection for arthritis of the cervical and thoracic spine. 3. Entitlement to service connection for spondylolysis of the 5th lumbar vertebra on the first sacral segment. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for psoriasis of the scalp, perineal and gluteal areas. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from August 1958 to August 1961. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision by the Houston, Texas, Regional Office (RO). A notice of disagreement addressing the issues as listed on the preceding page of this opinion was received in October 1992, and a statement of the case was issued in December 1992. An Appeal to Board of Veterans Appeals (VA Form 9) received in January 1993 constituted a substantive appeal on the certified issues. The veteran is represented by the Texas Veterans Commission. The Board notes that the May 1992 rating decision also denied entitlement to service connection for disability of the knees. However, the veteran's October 1992 notice of disagreement did not refer to that claim and therefore an appeal was not initiated on the issue of entitlement to service connection for disability of the knees. The veteran did address this additional issue in the VA Form 9 received in January 1993, and this document therefore also constitutes a notice of disagreement on the issue of entitlement to service connection for disability of the knees. This matter is hereby referred to the RO for appropriate development and action, including the issuance of a statement of the case if the benefit sought on appeal is not granted. 38 C.F.R. § 19.26 (1994). In a written communication received in October 1992, the veteran requested the opportunity to appear at a personal hearing and question one of the physicians who conducted the January 1992 Department of Veterans Affairs (VA) medical examination. In the statement of the case, the veteran was advised that hearings were not held before VA medical doctors, but that he had the right to appear before a hearing officer if he wished. In the veteran's January 1993 substantive appeal, he indicated that he did not wish to appear at a personal hearing. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the veteran injured his back while unloading ships during service and that this injury affects his entire spinal system. It is asserted that the veteran was treated at the military medical facility at Fort Eustis, Virginia, and that he was assigned to light clerical duties thereafter. The veteran also maintains that he was treated by a private physician immediately after service through 1971, but that no records of that treatment are available due to a fire and because that private physician is now deceased. The Board's attention is directed to a statement documenting that treatment from an individual who worked in that private physician's office. The veteran also stresses that VA examination showed degenerative changes in the spine and that since there is no evidence of recent fractures, it is plausible that his current back problems are due to the inservice injury. The veteran has also expressed disagreement with the RO's denial of his claims for entitlement to service connection for hypertension and for psoriasis of the scalp, perineal and gluteal areas. Finally, the veteran strongly maintains that the VA should allow his claim based on the doctrine of reasonable doubt. 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 claims for entitlement to service connection for residuals of injuries to the back and spine, for arthritis of the cervical and thoracic spine, for spondylolysis of the 5th lumbar vertebra on the first sacral segment, for hypertension, and for psoriasis of the scalp, perineal and gluteal areas are not well-grounded. FINDINGS OF FACT 1. The veteran's service medical records contain no complaints or clinical findings related to injuries to the back and spine, arthritis of the cervical and thoracic spine, spondylolysis of the 5th lumbar vertebra on the first sacral segment, hypertension, or psoriasis of the scalp, perineal and gluteal areas. 2. The first medical evidence of the presence of injuries to the back and spine, arthritis of the cervical and thoracic spine, spondylolysis of the 5th lumbar vertebra on the first sacral segment, hypertension, and psoriasis of the scalp, perineal and gluteal areas dates from many years after the veteran's service. 3. The only evidence relating any of the veteran's back symptomatology to events during his service consists of the veteran's own statements and a statement from an individual who has not been shown to have witnessed the claimed inservice back injury or to be a qualified medical expert. 4. The only evidence relating the veteran's hypertension and psoriasis of the scalp, perineal and gluteal areas to events during his service consists of the veteran's own statements CONCLUSION OF LAW The veteran's claims of entitlement to service connection for residuals of injuries to the back and spine, for arthritis of the cervical and thoracic spine, for spondylolysis of the 5th lumbar vertebra on the first sacral segment, for hypertension, and for psoriasis of the scalp, perineal and gluteal areas are not well- grounded. 38 U.S.C.A. §5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Statutory law as enacted by the Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). This threshold requirement is critical since the United States Court of Veterans Appeals (Court) has held that if a claim is not well- grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). A well- grounded claim has been defined by the Court as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91 (1990). 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. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). A claimant therefore cannot meet this burden 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 section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). With regard to entitlement to service connection, applicable law provides that service connection will be granted if the facts, shown by a preponderance of the evidence, establish that a particular disease or injury resulting in disability was incurred in service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1994). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1994). Certain chronic disabilities, such as arthritis and hypertension, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for a disease first diagnosed after 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) (1994). The veteran's service medical records contain no references to complaints or treatment for any back injuries, hypertension or psoriasis. The veteran has submitted copies of private medical records documenting treatment for back problems beginning in 1974. Records subsequent to that time show continued treatment for back complaints, and VA examination in January 1992 resulted in an impression of severe osteoarthritis of the cervical and thoracic spine with spondylolysis of L5 on S1. As noted by the veteran, x-ray studies in January 1992 showed no evidence of any recent fractures of the back. Medical records dated in the 1980's as well as the report of the January 1992 VA examination also confirm that the veteran suffers from hypertension and from psoriasis. The critical problem in the present case is to establish a link between the claimed disabilities and the veteran's service. As noted in the preceding paragraph, the fact that these disabilities now exist has been documented. With regard to the veteran's back disorders, he has reported that he was treated for back symptomatology beginning immediately after service, but that the private physician who treated him is deceased and the records of that treatment are unavailable due to a fire. In support of this assertion, the record includes a June 1992 statement from Lula F. Hayes Weber to the effect that she worked with a Dr. Barnett from 1959 through 1975 and that the veteran was treated on a regular basis from 1961 to 1974 for a "spinal column injury he received while he was in the service." She further reported that Dr. Barnett died in 1990 and that an office fire had destroyed all records. The Board notes here that Ms. Weber's statement make no reference whatsoever to hypertension or to psoriasis. While a lay informant is certainly qualified to offer evidence relevant to a factual issue, such as whether an event took place, when the determinative issue involves a question of medical causation, competent medical evidence to the effect that the claim is "plausible" is required. Grottveit, supra. With regard to that part of Ms. Weber's letter which attributes the veteran's back problems treated by Dr. Barnett to a back injury in service, there is nothing to suggest that Ms. Weber served with the veteran or was otherwise in a position to actually witness the claimed injury. It appears that her statement in this regard is based strictly on history which was provided at some time by the veteran. The Board therefore does not believe that Ms. Weber's statement can be accepted as competent evidence pertinent to the factual question of whether or not a back injury actually occurred during service. With regard to that part of Ms. Weber's statement which attempts to attribute a medical cause for the veteran's back problems treated by Dr. Barnett, there has been no showing that she is qualified to offer such a medical opinion. In other words, Ms. Weber's evidentiary assertion as it relates to medical causation is beyond her competence. Espiritu, supra. Ms. Weber's statement can be considered competent for the limited purpose of constituting evidence that the veteran received medical treatment from Dr. Barnett. Nevertheless, it cannot be considered competent evidence for the purpose of showing the medical causation of the back problems treated at that time, or for the even more significant and perhaps determinative purpose of showing the medical causation of the veteran's current back problems. As already noted, the veteran's service medical records do not show any complaints or clinical findings of any of the claimed disorders. Moreover, none of the medical evidence of record contains any opinion or assertion by a qualified medical expert which in any way tends to suggest a link between the veteran's service and any of the disabilities which are the subject of this appeal. The veteran's own opinions regarding the relationship between his claimed disabilities and his military service, and the statement of Ms. Weber, made some thirty years after the fact, cannot be accepted as competent for purposes of showing medical causation. The Court has specifically held that a service connection claim is not well-grounded if the claimant's service records do not show the claimed disability and there is no medical evidence to link a current disability with events in service or with a service-connected disability. Montgomery v. Brown, 4 Vet.App. 343 (1993). Thus, the veteran's appeal must be dismissed. 38 U.S.C.A. § 5107(a) (West 1991). The Board notes the veteran's request that the "benefit of the doubt" rule set forth under 38 U.S.C.A. § 5107(b) (West 1991) be resolved in his favor. However, the Court has indicated that this rule does not "ease the veteran's initial burden of proof." Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Moreover, without a well-grounded claim, there is no statutory duty under 38 U.S.C.A. § 5107(a) (West 1991) to assist the veteran with the development of evidence. Id. ORDER The appeal is dismissed. E. M. KRENZER 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.