BVA9501947 DOCKET NO. 93-13 811 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for rectal polyps. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from October 1951 to October 1955. This appeal arises from a December 1991 rating decision of the Togus, Maine, Regional Office (RO) which denied entitlement to service connection for a back disorder and rectal polyps. The veteran testified before a hearing officer at the RO in January 1993. The veteran is represented in his appeal by Veterans of Foreign Wars of the United States. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for a back disorder and rectal polyps. He contends that his back injury has reoccurred numerous times over the past years and caused considerable pain, lost time and expenses. He injured his low back in service stepping out of an armored car. He asserts that an examiner at the Philadelphia VA hospital told him that his rectal polyps had been caused by strain during basic training ten years earlier. 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 veteran's claim for a back disorder. It is also the decision of the Board that the veteran's claim for service connection for rectal polyps is not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A low back disability was not demonstrated in service or proximate thereto. 3. Any post service back disability is unrelated to service. 4. The claim for service connection for rectal polyps is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). 2. The claim for service connection for rectal polyps is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claims. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim with respect to entitlement to service connection for a back disability is plausible and that all relevant facts have been properly developed to the extent possible. We note the veteran claimed treatment at the Philadelphia VA hospital for a back disorder, however, that facility has no records pertaining to the veteran. Moreover, although the veteran indicated that he had been treated by private physicians, he could not remember their names and dates of treatment. However, for reasons discussed below, the appellant's claim for entitlement to service connection for rectal polyps is not well-grounded. I. Entitlement to Service Connection for a Back Disability Entitlement to service connection generally requires that it be shown not only that disease or injury was present in service, but also that the disease or injury has resulted in continuing or residual disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(b) (1993). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the disorder noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. The veteran's service medical records reveal that, in July 1953, the veteran underwent a physical examination. On the Report of Medical History, filled out and signed by the veteran in his own handwriting, the veteran checked that he had worn a brace or back support. The examiner then wrote that the veteran had worn a back brace for 4 months in 1950 with no sequelae. On several other examinations, notations were made concerning pre-service back problems. No mention was made of current symptoms. The remainder of the veteran's service medical records, including his enlistment examination in November 1951 and discharge examination dated in October 1955, are completely negative for complaints or treatment of a current back disability of any type. The service medical records appear to be complete, as the package includes reports of examinations for entry into service and for separation from service, along with dental reports, routine entries for sick call visits, and reports of hospitalization. While hospitalized at a VA hospital in October 1991 the veteran gave a history of lumbar strain and disc injury in service. A VA examination was conducted in November 1992. The veteran complained of back problems since service. He complained of low back pain, severe exacerbations with pain radiating to the right posterolateral thigh once a month, and indicated that he must avoid heavy lifting or bending. The diagnosis was chronic lumbosacral strain and likely residuals of cervical, diskectomy in lower cervical and upper cervical thoracic spine. The veteran testified before a hearing officer at the RO in January 1993. He testified that he injured his back in service while stepping out of an N108 armored car. He stated that the car had two steel brackets attached to the side to be used as a ladder. He missed or slipped off the bottom step, hit the ground, and hurt his back. He was taken to the dispensary, diagnosed with lower right lumbar strain, let off work for a week, and given aspirin. He was again treated after that at Dow Field for his back and numerous times following service. He testified that his back problems have reoccurred in the same area. He testified that he next reinjured his back in 1961 while working at a paper mill, was provided with a brace, and was out of work for a year. He testified that that was the first time he ever wore a back brace. He was seen in the early 1970's at the Philadelphia VA hospital for his back and was told he needed rest. He also saw private physicians but does not remember their names or dates of treatment and did not remember when questioned in the 1970's. He stated that he can't work, has constant pain in his back and cannot do any heavy lifting. Despite the current problems with the veteran's back, the Board concludes that the preponderance of the evidence is against the veteran's claim for service connection for a back disorder. The service medical records reveal no complaints or findings of a back injury in service. Additionally, the available medical records show no complaints or findings of a back disorder until more than 30 years after service. We have considered the veteran's testimony regarding his back disorder but do not find it probative in light of the service medical records which show no complaints or findings of a back disorder. The only entries noted in service regarding the back related to preservice difficulties. Moreover, we question the veteran's credibility regarding a back disorder. At his hearing, he denied ever wearing a back brace prior to 1961; however, on a Report of Medical History, filled out in the veteran's own handwriting, the veteran checked that he had previously worn a brace or back support and indicated to the examiner that he had worn a back brace in 1950 for 4 months. Accordingly, the evidence supports a finding that manifestations of a chronic back disorder were not present during service and the veteran's current back disorder had its onset several years after service. II. Entitlement to Service Connection for Rectal Polyps The United States Court of Veterans Appeals (hereinafter Court) has held that: A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. See 38 U.S.C.A. § 5107(a) (West 1991). See Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992). 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). The Court has clarified that: Because a well-grounded claim is neither defined by the statute nor by the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 3007(a) [presently enacted as 38 U.S.C. § 5107(a) (1993)]. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In the instant appeal, the veteran is seeking service connection for rectal polyps. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The evidence submitted by the veteran to support his claim for entitlement to service connection for rectal polyps consists of his testimony, service medical records and VA and private medical records. At his hearing in January 1993, the veteran testified that he complained about discomfort sitting while hospitalized for three months in service for hepatitis and jaundice and that nothing was done about it. Following service, he put up with them until he inquired about rectal polyps 15 years later at the Philadelphia VA hospital and the physician told him they were normal and come from basic strenuous activity during basic training. He also stated that he was operated on for a pilonidal cyst during the past year and the doctor said he would take care of his polyps but didn't. He testified that the polyps are tender, bleed when they flare up, and make it difficult to walk and sit down. The veteran's service medical records are completely negative for complaints or treatments of rectal polyps. The medical evidence subsequent to service shows no complaints of or treatment for rectal polyps. The Board finds it pertinent that the veteran has submitted no objective evidence of any nature which tends to show that he suffered from rectal polyps in service, or that he presently suffers from the same. While the statements of the veteran are deemed credible, we note that he does not have the medical competence to establish matters necessary to a showing that he suffered from rectal polyps in service, or that he presently suffers from the same. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The Court has held that where the determinative issues involve medical causation or diagnosis, competent medical substantiation is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). As indicated earlier, under the provisions of 38 U.S.C.A. § 5107(a), 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 or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159(a) (1993). Because there are no competent records in evidence that demonstrate that the veteran's claim is plausible or capable of substantiation, the Board finds that the veteran's claim is not well-grounded. ORDER Service connection for a back disorder is denied. Service connection for rectal polyps is dismissed. E. W. SEERY 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.