BVA9502918 DOCKET NO. 93-08 445 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for the residuals of a fracture of the right ulna. 4. Entitlement to service connection for condyloma acuminate of the scrotum and perirectal area. 5. Entitlement to service connection for post-traumatic stress disorder (PTSD). 6. Entitlement to service connection for hemorrhoids. 7. Entitlement to service connection for chest pain. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for a cervical spinal disorder. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active military service from January 1965 to January 1969, and from March 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) of Waco, Texas. The issues on the title page are the only ones fully developed for appellate review at this time. The veteran was found entitled to nonservice-connected pension benefits by rating decision of March 1993. He has been denied service connection for disabilities of the right leg and ankle, and for loss of hair. These issues are not inextricably intertwined with the issues before us, and are not developed for appellate review. As such, they will not be discussed in this decision. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended by and on behalf of the veteran that he is entitled to service connection for the disorders set forth on the title page of this decision. It is asserted that these disorders had their onset during service, and that he should be taken care of after having served his Country. It is also contended that he was treated for these disorders after service in VA Medical Centers in San Diego and Los Angeles, California. 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 preponderance of the evidence is against the claims for service connection for a low back disorder and for headaches. It is the further decision of the Board that the veteran has failed to submit evidence that the remaining claims are well grounded, and that as such, the appeal as to those issues is dismissed. FINDINGS OF FACT 1. Treatment for a low back disorder and for headaches during service was for acute and transitory disorders; continuing headaches or low back impairment was not shown in service or immediately thereafter. 2. Headaches and a low back disorder demonstrated in 1989 and thereafter are unrelated to any in-service occurrence or event. 3. Service medical records fail to demonstrate the presence of a fracture of the right ulna, condyloma acuminate of the scrotum and perirectal area, PTSD, hemorrhoids, chronic chest pain, hypertension or a cervical spinal disorder during service. 4. Hypertension was not demonstrated until many years after separation from service. 5. PTSD has never been clinically established. 6. There is no evidence that relates the current residuals of a fracture of the right ulna, condyloma acuminate of the scrotum and perirectal area, hemorrhoids, chest pain, hypertension, or a cervical spinal disorder with any in-service event or occurrence. CONCLUSIONS OF LAW 1. A chronic low back disorder and chronic headaches were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303 (1994). 2. The veteran has not submitted evidence of well grounded claims for service connection for the residuals of a fracture of the right ulna, condyloma acuminate of the scrotum and perirectal area, PTSD, hemorrhoids, chest pain, hypertension, and a cervical spinal disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered at the outset of the analysis of any case is whether the veteran's individual claims are well grounded; that is, whether they are plausible, meritorious on their own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim as such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). As will be set forth in greater detail in the following sections, we conclude that only the claims for service connection for a low back disorder and for headaches are well grounded. The claims as to the other issues are not well grounded and the appeal as to those issues is dismissed. For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110, (West 1991); 38 C.F.R. § 3.303 (1994). There are some disabilities, including hypertension, where service connection may be presumed if the disorder is manifested to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Well Grounded Claims for Service Connection I. After reviewing the evidence on file, we conclude that the claims for service connection for a low back disorder and for headaches are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the claims are not inherently implausible. As such, the next determination is whether all facts pertinent to those claims have been developed. In this case, all pertinent development has been accomplished. The claims folder contains the veteran's service medical records. It also contains private medical reports submitted in support of the claim, and a VA examination conducted in 1991. The veteran has reported that he was treated in the 1970's for his disabilities at VA Medical Centers in San Diego and Los Angeles, California. The RO contacted those facilities and received responses that they had no record of treating the veteran during that period. It appears that there are no records of this claimed treatment available. The record also contains a history that the veteran had his broken right ulna treated at a Naval facility in 1972. These records are not on file, but as this is the only reference to treatment at that facility, there is no reason to seek those records. That injury happened post-service and is unrelated to the well grounded claims at issue. The record on appeal also contains a January 1993 physical examination, apparently conducted as part of the pension claim. That examination was not considered by the RO in developing this appeal. Our review of the examination suggests that there is no prejudice to the veteran as the examination report shows the current nature and extent of the disorders, and does not go to the origins of the disabilities. As such, that examination is essentially cumulative, and the RO's lack of consideration of that report is not prejudicial error. Moreover, as the RO did not use that examination in evaluating the claim, the Board will not discuss the findings of the examination in entering the decision herein recorded. Additionally, lay and other statements submitted in association with that pension claim are not for consideration in this decision. II. Service medical records show that the veteran was seen in October, November, and December 1966 for complaints of headaches. He reported, during the course of this treatment, that at age 7 he had been struck in the head with a baseball bat and had headaches since that time. Diagnostic studies were unremarkable, and the diagnoses included headaches of unknown etiology, and chronic tension headaches that had existed prior to entry into service. He was seen on one other occasion in August 1967 for headaches. Medication was prescribed and there was no other finding. Following conservative treatment that was rendered at the time he had these headaches, and despite the one diagnosis of "chronic" headaches, the remaining service medical records contain no complaints, findings or diagnoses of headaches during either period of service. There is no pertinent finding on examination for separation. Similarly, service medical records contain only brief findings referring to the lumbar spine. In June and August 1970, the veteran was seen for complaints that included low back pain. He was given medication and conservative treatment. No back disorder is thereafter complained of or noted in the service medical records. Again, the separation examination showed no pertinent findings. In November 1972, a claim for VA benefits was received from the veteran. This claim made no mention of chronic headaches or back disability, but referred only to the residuals of a fracture of a finger of the right hand. An examination was scheduled. The veteran failed to report and the claim was administratively denied due to the failure to report. (By rating of November 1991, service connection was granted for the residuals of a right fifth metacarpal, after the veteran showed for the 1991 examination.) A VA examination was conducted in August 1991, in conjunction with the current claims. He gave a history of a 1989 injury to his low back at work, with some settlement in effect from an insurance company. He also gave a history of "blinding" headaches since separation from service. Reportedly, he occasionally sought emergency room treatment for these complaints, the last time being two years previously. Tension headaches were diagnosed after the examination. No pertinent physical findings with reference to the headaches were reported on the examination report. Examination of the back revealed normal posture, normal lumbar lordosis, and no scoliosis or spasm. X-ray films showed sacralization of the L5 on the left side, but were otherwise negative. A lumbar strain was diagnosed. Also on file are private medical records dated from November 1989 to December 1991. The veteran was followed by Gopal R. Guttikonda, M. D., following an October 1989 accident at work. Records for November 1989 show that the veteran was seen complaining of low back pain, neck pain, and headaches, since an injury shoveling concrete. He reported about 10 headaches since the injury. He also complained of pain into the lower extremities since that accident. The veteran had been referred to Dr. Guttikonda for treatment. The past medical history was of a history of a low back injury in 1984. He had reportedly improved over the following year. He had also had a post concussion syndrome at that time. That too had improved. After examination in November 1989, the doctor's recorded impressions were of lumbosacral myofascial pain, most likely secondary to facet strain or facet arthropathy; cervical strain; and post traumatic muscle contraction headaches. Subsequent records show treatment and follow-up with Dr. Guttikonda. In late November 1989, it was noted that there were findings consistent with a bulging lumbar disc. He was gradually returned to some work, although it was noted that he was not a good candidate for continued manual labor. The veteran's visit to the doctor became further apart. The complaints of pain, attributed to the bulging disc continued. In September 1991, he reported intermittent headaches and back spasms. A Social Security claim was reportedly denied. The last entry for December 1991 noted a history of throbbing headaches in the past with a recent setback. The impression was of low back pain secondary to the disc, and migraine headaches. The evidence on file shows that the veteran received isolated treatment during service for headaches for about 3 months, and low back complaints for about 2 months. There were no complaints or findings of either disorder at the time of separation from service, and no records have been submitted that show these disorders existed on a continuing basis since separation from service. Thus, they are not deemed to be "chronic" diseases which had their onset during service. Pertinent law requires that for the showing of 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, 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. 38 C.F.R. § 3.303. In this case, the record does not reveal continuing symptoms of headaches or a low back disorder in the years following separation from service. Rather, the overwhelming weight of the evidence as to these two issues shows that the onset of the chronic back disorder was in 1989, following a work related injury. At that time the recorded clinical history contained no reference to a continuing back injury or headaches since the separation from service. Rather, there was reference to a 1984 back injury, which was said to have resolved. Since the 1989 work injury however, the veteran has clearly had chronic back complaints, and there are now findings of a bulging disc in the lumbar spine. Significantly, the disc pathology was not noted as late as the first post-work injury consultation in 1989. As such, it can not be medically related to service. The record also shows complaints of headaches after the work injury. Again, there was no recorded history of continuing symptoms since separation from service. It is also noted that the first post-service claim for VA benefits makes no reference to continuing low back problems or to headaches. In late 1991, after the current claim for VA benefits was filed, the history in Dr. Guttikonda's records notes a history of headaches for "years in the past" but this does not clearly mean to service, but is more likely related to the post-concussion syndrome said to be present in 1984. The Board concludes that the initial history as provided at the time of the first consultation with Dr. Guttikonda is most probative as the history was offered at a time when treatment was to be rendered for a back disorder. There is a conclusion that the reporting individual would provide a truthful history prior to treatment, so as to return to better health. In addition, the history provided at the time of the 1989 treatment is deemed highly credible as it seems consistent with the other evidence in the claims folder. That evidence suggests that there was no continuing or chronic back problem in the years after service, and that there were no chronic headaches in the years after service. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Not Well Grounded Claims for Service Connection I. As noted above, the remaining claims have been found by the Board to be not well grounded. A veteran has, by statute, the duty to submit evidence that a claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107 (a) (West 1991). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or beyond the competence of the individual making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions as to the remaining claims of service connection are inherently incredible when viewed in the context of the total record or are beyond the competence of the person making the assertion. II. The veteran's service medical records are completely negative for complaints, findings, and diagnoses of the remaining disabilities for which service connection is claimed. As noted above, the service medical records include a physical examination for separation from the last period of service, conducted in November 1970. That examination is negative in all pertinent respects. Service medical records do show treatment for complaints of various skin diseases, generally of the face, associated with an allergy or shaving. Service connection has been established for pseudofolliculitis barbae. There is also a finding of contact dermatitis of the eyes. Additionally the veteran was treated for venereal disease at least one time during service, but there were no residuals noted at the time of the separation physical. Finally, there is absolutely no evidence that he was ever treated for any skin disorder of the scrotum or perirectal area during service. The recent history given that this disorder has been present since service is not consistent with or supported by the record. It was not claimed at the time of the 1972 application for VA benefits. It is first shown years post-service, and is not related to service by any competent evidence. The only reference to the neck in service is of a small knot on the back of the neck. It was not draining and was not inflamed on examination, warm soaks were recommended if it became inflamed, excision was not thought indicated. There is no further reference to this in the service medical records or in the post-service records. The cervical spinal problem that the veteran now has is, according to the medical evidence from Dr. Guttikonda, and the 1991 VA examination, associated with his lumbar spinal disorder. As noted above, that is unrelated to service. As such, we conclude that there is no nexus between the current cervical spinal disorder and any in-service occurrence or event. The service medical records do not show complaints of chest pain. The veteran was seen on several occasions for complaints of abdominal pain in the left upper quadrant. No clear cause for the complaints was ever established. There is, however, no finding of chest pain reported. There is no chronic disability manifested by chest pain noted on the 1991 VA examination, although there is a finding of chest pain by history. There is no competent evidence that these complaints had their onset in service or can be related to service. The veteran is claiming service connection for the residuals of a fracture of the right ulna. The theory for this claim is unclear as the clinical history provided on the VA examination was of a 1972 fracture of the arm. While it was reportedly treated at a Naval base facility, that does not make the disability service connected. No evidence has been submitted that this disorder is in any way related to service. As such the claim is not well grounded. Hemorrhoids were never found present in service. Moreover, they have not been found present on examination since service, except for a diagnosis of internal hemorrhoids on VA examination in 1991. The basis for this diagnosis is unclear as the actual examination report finds no hemorrhoids on examination. In any event, there is no competent evidence which shows any nexus between service and the presence of any hemorrhoids. For this reason, this claim is not well ground. The claim for hypertension is not well grounded because there is no competent evidence showing the disorder during service or within 1 year following separation from service. There was some mild hypertension noted at the time of the 1991 VA examination, but there is no evidence that this had any relationship to service. Finally, the veteran claims service connection for PTSD. This claim is not well grounded as PTSD has never been clinically established. Where a disorder is not clinically present, it can not be service connected. For service connection to be established, there needs to be some showing that the disorders for which it is claimed had their onset in, or are otherwise related to a service occurrence or event. Therefore, even if the veteran now has these disorders, there is no evidence of medical causality, and as such, the claim is not well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994). The veteran lacks the medical expertise to enter a judgment regarding medical relationship between these claimed disorders and any claimed in-service onset. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93, (1993). Where there is no medical evidence of the claimed disorders during service, where there is no medical evidence linking the claimed disorders to service or an in-service event or occurrence, or where the disorders are not currently demonstrated, the claims are not well grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Fields v. Derwinski, No. 90-933 (U.S. Vet. App. Dec. 2, 1991). ORDER Service connection for a low back disorder and for headaches is denied. Having found the claims for service connection for the residuals of a fracture of the ulna, condyloma acuminate of the scrotum and perirectal area, PTSD, hemorrhoids, chest pain, hypertension and a cervical spinal disorder not well grounded, the appeal as to those issues is dismissed. MICHAEL D. LYON 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.