Citation Nr: 0006217 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-12 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran served on active duty for more than twenty years and retired in November 1997. This appeal arises from a June 1998 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which (in part) denied the benefits sought on appeal. A notice of disagreement was received in July 1998, and a statement of the case was issued later that month. The veteran's substantive appeal was received in August 1998. FINDINGS OF FACT 1. There is no medical diagnosis of current low back disability. 2. There is no medical diagnosis of current sinusitis. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a low back disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for sinusitis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, it should be noted at the outset that 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). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (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 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 and/or lay statements 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 38 U.S.C.A. § 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). In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Moreover, the truthfulness of evidence is presumed in determining whether a claim is well-grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. The report of medical history portion of the veteran's October 1997 separation physical reveals that the veteran indicated that he suffered from recurrent back pain and sinusitis. However, the October 1997 separation examination report shows that both the veteran's spine and sinuses were clinically evaluated as normal. In February 1998 the veteran underwent a VA general medical examination. He indicated that he had suffered from low back pain for the prior 10 years. The veteran remarked that three or four times per year he would awaken with low back pain which would last two or three days; he stated that he would take medications during that time. There was no radicular pain and the pain was localized to the lower back. Physical examination revealed that there was no low back tenderness or spasm. Extension of the back was to 30 degrees, torsion movements were greater than 45 degrees bilaterally, and straight leg raising was normal. Sensation was intact and deep tendon reflexes were normal. The assessment was mechanical low back pain which is intermittently acute but without symptoms otherwise. At the February 1998 VA general medical examination, the veteran stated that his nose would stop up at night and during the dry winter weather. He denied nasal discharge or sinus tenderness. Examination revealed that the nares were not obstructed, there was no discharge, and the nasal septum was in the midline. Mucosa appeared normal. The assessment was seasonal winter rhinitis which is likely related to the dry air and lack of humidity with no evidence of sinusitis. There is no competent medical evidence demonstrating that the veteran currently suffers from a low back disability or sinusitis, and the Board finds that the veteran's claims for service connection for a low back disability and sinusitis are not well grounded. 38 U.S.C.A. § 5107(a). The Board acknowledges that the service medical records in the claims file and those referenced in the veteran's substantive appeal reflect that the veteran complained of low back and sinus problems during service. However, in order for a service connection claim to be well-grounded, there must be competent evidence of current disability, i.e., a medical diagnosis. Epps. While the veteran has contended that he has sinusitis and a low back disability, the medical evidence of record does not support his contentions and his contentions, alone, do not make his service connection claims well grounded. Espiritu, 2 Vet. App. at 492-495 (lay persons are not competent to offer medical opinions). As for the veteran's low back claim, the Court has held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez- Benitez, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999). Therefore, as the veteran has not presented any competent medical evidence that he currently suffers from a low back disability or sinusitis, his claims for service connection are not well grounded and must be denied on that basis. 38 U.S.C.A. § 5107(a); Epps. The Board acknowledges the veteran and his representative's request that the veteran should undergo radiologic testing to determine whether he has sinusitis. However, a claimant for VA benefits must submit and establish a well-grounded claim before VA is required to provide assistance to a claimant in developing the facts underlying his or her claim. Epps. In fact, the Court has held that, when a claim is not well grounded, VA cannot assist the claimant in the development of facts pertinent to the claim. See Morton v. West, 12 Vet. App. 477, 486 (1999). The Board is aware of no circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the veteran's service connection claims plausible. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). By this decision, the Board is informing the veteran that a medical diagnosis of current disability as well as medical evidence of a nexus between a current disability and service are necessary to establish well-grounded service connection claims. See 38 U.S.C.A. § 5103(a); Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER The appeal is denied as to both issues. ALAN S. PEEVY Member, Board of Veterans' Appeals