Citation Nr: 0002354 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 91-23 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for residuals of a right great toe injury. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from June 1967 to May 1970 and from December 1980 to December 1982. He was a member of the National Guard and Army Reserve between his two periods of active service and also, subsequent to his second period of active service, indicating periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The veteran's case was remanded for additional development in January 1995. The case is again before the Board for appellate review. The Board notes that the veteran had sought entitlement to service connection for a bilateral hearing loss and tinnitus when the case was before the Board in 1995. The Board also notes that, while the veteran's case was in a remand status, he was granted service connection for bilateral hearing loss and tinnitus in August 1999. The veteran's representative submitted a VA Form 646, dated in October 1999, which indicated that the August 1999 rating decision was considered to be a complete grant of benefits sought in regard to those issues. As the veteran has not submitted a notice of disagreement in regard to the rating action, the Board does not have jurisdiction over those issues. Grantham v. Brown, 114 F.3rd 1156, 1159 (1997). FINDINGS OF FACT 1. The claim of entitlement to service connection for residuals of a right great toe injury, is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. 2. Medical opinion from Colonel Schaub in 1985 and statement from VA examiner in January 1997 related the veteran's back disorder to service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for residuals of a great toe injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran's claim of entitlement to service connection for a back disorder is well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Right Great Toe The veteran is seeking service connection for residuals of a great toe injury. The legal question to be answered initially is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail with respect to this claim and there is no duty to assist him further in the development of this claim. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service; or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.306(a) (1999). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6(a) (1999). See Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22) (West 1991). The definition under 38 U.S.C.A. § 101(24) makes a clear distinction between compensating a veteran for disabilities incurred or aggravated on active duty and disabilities incurred or aggravated on active duty for training. For a veteran to receive disability compensation for an injury or disease incurred on active duty for training, the disability must occur or be aggravated during the active duty for training. See 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In this case, the veteran served on active duty from June 1967 to May 1970. The service medical records from that period of service are negative for any indication of a great toe injury. Copies of physical examinations for the period from July 1976 to September 1978 do not reflect any information pertaining to an injury to the right great toe. However, an Air Force Form 348, dated April 23, 1979, reported that the veteran suffered an injury to his right foot while jogging at March Air Force Base (AFB) during "activity." The preliminary diagnosis was probable torn tendon in the right foot with numbness of the right great toe from the tip to the middle of the foot. Several SMR entries, dated in April and May 1979 reflect authorized treatment for complaints of right foot and right leg pain. A review of physical examination reports for the period from November 1979 to October 1989 indicates a reference to the April 1979 injury but does not reveal any mention of any ongoing problems with the right great toe. At the latest examination of record in October 1989, the veteran stated that he was in excellent health and did not indicate any foot problems on his Report of Medical History. The Board notes that there is no indication from the available records as to whether the veteran was serving on active duty for training (ADT ) or inactive duty (IDT) at the time of the April 1979 injury. However, review of the associated medical documents reflects that medical treatment was authorized for the veteran due to his injury. Accordingly, the Board finds that he suffered an injury to his right great toe while performing active military service. There is no need to differentiate between ADT or IDT as it was an injury. Injuries are covered for consideration of service connection under either setting. 38 C.F.R. § 3.6. The veteran filed his claim for service connection for residuals of a right great toe injury in January 1990. He indicated on his claims form that he had received treatment for his toe at the VA medical center (VAMC) in Portland, Oregon, in 1981. The veteran was afforded a VA orthopedic examination in May 1990. He gave a history of injury to his right great toe in 1980 with residual numbness for one year. He related that the numbness was entirely resolved, that his right great toe was "entirely normal, back to its baseline, no pain, and no disability." The veteran complained about recurring back pain but related that he was able to play limited amounts of racquet ball. Physical examination of the right great toe was reported to be entirely normal. There was no motor, sensory or other deformity noted. The examiner's diagnosis was history of right great toe injury, without residual. In reviewing the evidence of record the Board finds that the veteran did suffer an injury involving his right great toe during active military service in April 1979. There is no evidence to support a finding of an injury prior to that date, or a finding of an injury or aggravation of the 1979 injury subsequent to April 1979. Further, the veteran has not contended that he has received any additional treatment for the prior injury so that there are any missing pertinent records. The veteran contends that service connection should be granted for residuals of a injury to his right great toe. However, the objective evidence of record demonstrates that the veteran does not have a current disability involving his right great toe. The Board has reviewed the other medical evidence of record consisting of VA treatment records for the period from January 1989, VA examination reports for unrelated complaints, dated in 1997, 1998 and 1999, as well as private treatment records from Kaiser Sunnyside. The VA treatment records reflect counseling provided to the veteran for weight loss. The Board notes that the veteran's SMRs contain what appears to be VA treatment records dated in April and May 1979 and previously discussed. The VA examination reports relate to the veteran's hearing loss and tinnitus disabilities and contain no information pertinent to his right great toe, to include any complaints of a current problem. Finally, the Kaiser records relate to the veteran's back problems, primarily dealing with his laminectomy in 1987. Those records reflect complaints of some shooting pain in the "left" great toe but nothing involving the right great toe. A neurosurgery clinic note, dated in October 1987, reported a history, as related by the veteran, of him jumping into a hole during an Army Reserve exercise and injuring his back and having toe numbness. The note further recorded that the numbness had since resolved. In short, no medical or other competent evidence showing that he currently has a disability related to residuals of a right great toe injury has been presented. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The only evidence the veteran has offered in support of his claim is contained in his January 1990 claim for compensation. While the veteran is certainly capable of providing evidence of symptomatology, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Causative factors of a disease, such as arthritis, amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). Therefore, without competent evidence linking the veteran's current disorder to service this claim must be denied as not well grounded. A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since the veteran has submitted no medical or other competent evidence to support his claim that he currently suffers from any residuals of a right great toe injury in 1979, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded. 38 U.S.C.A. § 5107. Hence, the benefits sought on appeal are denied. As the foregoing explains the need for competent evidence of a current disability which is linked by competent evidence to service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disabilities. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). II. Back Disability The veteran is also claiming service connection for a back disability. In that regard, the veteran's case has been remanded on two occasions in an attempt to obtain complete records involving both personnel actions and medical treatment. To date, the efforts have not been successful. The Board also notes that the veteran has been requested, on several occasions to supply crucial information relative to his claim and he has failed to do so. This also includes his failure to report to a January 1997 VA orthopedic examination that was specifically rescheduled for the veteran after he forgot to report for a December 1996 appointment. A review of the available medical records does reflect that the veteran was provided military treatment for complaints of back pain. The Board notes that the veteran has alleged different periods of treatment for his back pain. At the time of his claim filed in 1983, the veteran said that he received treatment in November and December 1982 while serving on active duty with the Air Force. At the time of his claim in 1990, the veteran said that he received treatment while in the California National Guard in 1976 to 1977. The veteran has submitted copies of his SMRs that clearly show multiple treatments related to back complaints during his period of active duty from December 1980 to December 1982. Included in the records submitted by the veteran are treatment records dated in March 1985 that reflect treatment provided for back pain during a period of active duty for training. Included in his SMRs is an undated Report of Consultation by a Colonel J. Stephen Schaub, M. D., written on a Kaiser Permanente form. (The Board notes that the report was probably completed in 1985 as it referred to the veteran as being 35 years old and he was born in 1949 and discussed a 1985 injury.) The report noted a history of a back injury in 1982. It also noted no further trouble until March 1985. The impression was low back pain with left sciatica and probable herniated nucleus pulposus at L3-4, or L4-5. The examiner further stated that the problem occurred in the line of duty during active duty status (initial episode) and was aggravated during an annual training status (current episode). The veteran underwent a laminectomy in October 1987 for a herniated disc at L4-5. Finally, as noted previously, the veteran was scheduled for a VA orthopedic examination in January 1997 but failed to report. The examiner reviewed the available evidence in the claims file and offered an opinion relating to etiology of the veteran's back complaints. In short, the examiner found that 25 percent of the veteran's "present difficulty" was attributable to his various episodes of back difficulty in the military. In light of the evidence of record indicating treatment for back problems in service, the comments provided by Colonel Schaub and the comments provided by the 1997 VA examiner, the Board finds the veteran's claim for service connection for a back disorder to be well grounded. However, additional development is necessary before the issue can be fairly adjudicated and VA has a duty to assist the veteran in the further development of his claim. Morton v. West, 12 Vet. App. 477 (1999). ORDER Service connection for residuals of a right great toe injury is denied. The veteran's claim for service connection for a back disorder is well grounded. REMAND The Board notes that the veteran's case has been remanded on two prior occasions and regrets that this issue must yet again be remanded. However, the veteran bears some responsibility in the problems associated with developing this claim. He has failed to provide requested evidence and failed to report for scheduled examinations that would be beneficial in a fair adjudication of his claim. He is advised that the VA's duty to assist is not a one way street and his failure to provide assistance where needed could have a negative impact on his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, the veteran's failure to report for any future scheduled VA examination could result in the adjudication of his claim based upon the evidence of record. 38 C.F.R. § 3.655(b) (1999). Past remands have concentrated on attempting to obtain both medical and personnel records for the veteran. The Board notes that requests for records have been made to the State of California, and State of Oregon National Guards with no reply from California and negative results from Oregon. Further, requests for records from the Army Reserve Personnel Center in St. Louis, Missouri, have gone unanswered. However, the Board is aware that the address used to request records from the California National Guard has been changed. In addition, the Board has learned that the Oregon National Guard does have records for the veteran. The prior negative search was likely the result of the searcher relying on a computer data base indexed to records after 1987. The veteran's service in the Oregon National Guard occurred prior to that time. Finally, there is no indication in the record to show that the veteran is not currently serving in either the National Guard or Army Reserve and that his records are available on a local basis. Material contained in the SMRs reflects ongoing evaluations and waiver requests into 1991. Accordingly, the veteran must be contacted and he must furnish information relative to his exact military status. The latest military records reflect the veteran's status as a Sergeant First Class which is indicative of a sufficient rank to be able to assist the RO in obtaining the necessary information. Finally, the Board has found the veteran's claim of entitlement to service connection for a back disorder to be well grounded for the reasons specified in the Reasons and Bases section of this decision. However, the Board also notes that the veteran's most recent military physical examination of record, dated in October 1989 reflected no problems with his back and could be interpreted to show that he does not have a current disability. Therefore, it is extremely important for the veteran to enable the RO to obtain all of his SMRs, especially those subsequent to his 1987 surgery, and to report for a VA examination. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The veteran should be contacted and requested to provide information relative to his current military status. If he is still involved in the National Guard or Army Reserve, the veteran must provide information on how to contact the appropriate unit to obtain all pertinent records, both personnel (detailing his dates of ADT/IDT) and medical. The veteran should be requested to provide any release necessary to obtain the records. 2. After obtaining the necessary authorization from the veteran, the RO should request the veteran's National Guard records from the following sources: Headquarters, California Army National Guard, 9800 Goethe Road, Attn: Military Personnel, Sacramento, CA 95826. Both Air and Army National Guard records should be requested. Oregon Military Department, Headquarters Oregon National Guard, Attn: Wendy Yoder, 1776 Militia Way, P. O. Box 14350, Salem, OR 97309-5047. Again both Air and Army National Guard records should be requested, to include any DD 214s issued. 3. The veteran should be requested to identify the names, addresses, and approximate dates of treatment for all health care providers, both VA and private, who may possess additional records pertinent to his claim. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of those treatment records identified which have not been previously secured. 4. After having obtained the additional evidence requested, if any, the veteran should be afforded a VA examination to determine the nature and etiology of any back disability. All necessary tests and studies deemed appropriate by the examiner should be performed. The examiner is requested to review the claims folder to specifically include the service medical records, VA examination report from January 1997, private treatment records, and any additional records secured. Based on this review and the clinical findings contained in the VA examination report, the examiner is requested to offer an opinion as to whether it is at least as likely as not that the veteran: (1) has a current back disorder; (2) if he does, is it at least as likely as not that the current disorder is related to any injury noted in service. Any and all opinions expressed must be supported by a complete rationale. 5. After undertaking any development deemed appropriate in addition to that specified above, the RO should review the examination report. If the report is not in complete compliance with the instructions provided above, appropriate action should be taken. 6. Thereafter, the RO should readjudicate the issue of entitlement to service connection for a back disorder. If the determination remains unfavorable to the veteran, the RO should issue a supplemental statement of the case and provide an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. WARREN W. RICE, JR. Member, Board of Veterans' Appeals