Citation Nr: 0007394 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-29 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for lumbar stenosis, status post L5-S1 decompression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from June 1978 to February 1979. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1997 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT The appellant has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for lumbar stenosis, status post L5-S1 decompression is plausible. CONCLUSION OF LAW The claim of entitlement to service connection for lumbar stenosis, status post L5-S1 decompression is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Generally, a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for entitlement to service connection is well grounded when there is (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. 498, 506 (1995) (citations omitted), aff'd 78 F.3d 604 (Fed. Cir. 1996). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. In determining whether a claim is well-grounded, the supporting evidence is presumed to be true. King v. Brown, 5 Vet. App. 19, 21 (1993). Once well groundedness has been established, service connection may be established for a current disability in several ways including on a "direct" basis. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. §§ 3.303(a), 3.304 (1999). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires that the evidence show the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required to satisfy the second element. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). The appellant's service medical records are devoid of any complaint of, treatment for, or diagnosis of any back condition, including lumbar stenosis, status post L5-S1 decompression. The appellant's separation examination report indicates that the spine was normal and there were no musculoskeletal abnormalities noted. There is an 11 year gap between the time the appellant left service and the first medical evidence of record indicating back trouble. The record contains outpatient treatment records between October 1990 and December 1991. These records indicate a diagnosis of lumbar disc syndrome on the left with S1 radiculopathy and probable L5 disc herniation. There is no indication in the records regarding the etiology of the appellant's S1 radiculopathy and L5 disc herniation. VA hospitalization records in November 1996, and VA outpatient treatment records from November 1996 to March 1997, indicate a diagnosis of lumbar stenosis, status post L5-S1 decompression. The appellant underwent S1-L5 discectomy and nerve root decompression. The hospitalization report indicates that the veteran had suffered from back pair for six years. The treatment notes indicate that the appellant had complained of pain in his back and legs, but there is no indication as to the etiology of the lumbar stenosis, status post L5-S1 decompression. VA outpatient treatment notes from July 1998 to September 1998 indicate additional complaints of pain, and in September 1998, the appellant was diagnosed with muscle spasms and lumbar radiculitis. A joint injection and neuroplasty were performed on September 24, 1998 to alleviate pain. There is no mention of any etiology of the appellant's back disability. In an October 1999 statement the appellant argued that VA did not have all of his service medical records and that he had been treated in service at Ft. Dix for stress fractures of the heels. However, the claims file shows that the RO requested all of the appellant's service medical records, including all records from Ft. Dix in May and October 1999, but did not receive any records of hospitalization. The foundation of entitlement to VA disability compensation benefits is that a claimant have a current "disability," either due to disease or injury. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999); Caluza, 7 Vet. App. at 506. It is not enough that an injury or disease have occurred in service. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (citing Rabideau v. Derwinski, 2 Vet. App. 141 (1992)). Here, the Board finds sufficient evidence that the appellant currently has lumbar stenosis, status post L5-S1 decompression. The VA hospitalization and outpatient treatment records provide a clear diagnosis of that condition. Therefore, the Board finds that the first element of a well grounded claim has been met. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. at 506. The second prong of a well grounded claim is that of an inservice disease or injury. The service medical records reflect a diagnosis of stress fractures of the heels. In this regard, for the purposes of determining well groundedness, the Board considers the appellant's statement credible, and his report of the diagnosis he was given as competent. Therefore, the Board finds that the second element of a well grounded claim has been met. Id. The third element of a well grounded claim is medical evidence of a nexus, or link, between the inservice disease or injury and the current disability. Id. Here, there is no medical opinion or similar evidence indicating that the appellant's current lumbar stenosis, status post L5-S1 decompression is somehow related to service. The appellant asserts that his current lumbar stenosis, status post L5-S1 decompression is related to the stress fractures of the heels that he experienced in service, but he is not competent to make such a conclusion; that is a medical opinion as to etiology and, thus, can only be made by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (Appellant cannot meet the burden imposed by 38 U.S.C.A. § 5107(a) as to a relationship between his disability and service because lay persons are not competent to offer medical opinions). In light of the above, the Board must deny the appellant's claim as not well grounded. There is no competent evidence relating his current conditions to service. As such, his claim is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999); Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. at 506. Therefore, the Board cannot decide the claim on the merits. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well grounded, the Board does not have jurisdiction to adjudicate it). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application. This obligation depends on the particular facts of the case and the extent to which the claimant has been advised of the evidence necessary to well ground a claim. Robinette, 8 Vet. App. 69 (1995). Here, the Board finds that VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits for service connection for lumbar stenosis, status post L5-S1 decompression. Nothing in the record suggests the existence of any additional evidence that might well ground this claim. The RO collected numerous medical records from the appellant and his doctors, and made every effort to obtain additional service records from Ft. Dix. Even if the evidence from Ft. Dix were available it would have no impact on the outcome of this appeal. As previously indicated, the service medical records reflect a diagnosis of stress fractures of the heels. However, the records do not provide the needed medical evidence that the current disability is related to an injury or disease in service. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence) and Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA "duty" is just what it states, a duty to assist, not a duty to prove a claim). It is not shown that additional relevant evidence exists that has not already been associated with the claims file. The appellant's representative has requested that the Board obtain an independent medical opinion to provide evidence as to the likelihood of the appellant's current back disability being related to trauma that occurred in service. In the absence of competent evidence indicating such a relationship, the claim is not well-grounded and no duty to assist exists. Finally, the Board has decided the present appeal on a different legal basis than the RO did. When the Board addresses in a decision a question that has not been addressed below, it must be considered whether the claimant has been given adequate notice and opportunity to respond, and if not, whether the claimant will be prejudiced thereby. See Benard v. Brown, 4 Vet. App. 384 (1993). However, the appellant has not been prejudiced by the decision herein. The Board has considered the same law and regulations the RO did, but in so doing, concludes that the appellant did not meet the threshold requirements of a well-grounded claim for disability compensation benefits. See Edenfield v. Brown, 8 Vet. App. 384 (1996) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). The result is the same. Accordingly, the Board must deny the appellant's claim of service connection for lumbar stenosis, status post L5-S1 decompression as not well grounded. ORDER Entitlement to service connection for lumbar stenosis, status post L5-S1 decompression is denied, as the claim is not well grounded. A. BRYANT Member, Board of Veterans' Appeals