Citation Nr: 0005658 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 94-24 925A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for spondylolisthesis and spondylosis with degenerative disc disease of the lumbar spine. 2. Entitlement to service connection for an eye condition. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant, appellant's mother, sister and two friends ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from April 1963 to April 1965. This appeal arises from a decision by the Manchester, New Hampshire, Department of Veterans Affairs (VA) Regional Office (RO). The veteran's claim for service connection for post-traumatic stress disorder was the subject of a separate decision issued by the Board on May 24, 1999. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. No current lumbar spine pathology is shown to be related to mid-back complaints noted in service. 3. No current eye pathology is shown to be related to service. CONCLUSIONS OF LAW 1. Spondylolisthesis and spondylosis with degenerative disc disease of the lumbar spine were not incurred in or aggravated by military service, nor may incurrence be presumed. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.303, 3.310 (1999). 2. The veteran has not submitted a well-grounded claim for an eye condition. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's enlistment physical examination is negative for any back pathology. Vision testing yielded results of 20/20, bilaterally. Service medical records reflect that in March 1964, the veteran was seen for complaints of back pain without a history of trauma. There was no evidence of significant trauma. He was treated with Darvon. For the next few days, he continued to complain of mid-back pain. A complete examination of the back was negative. He was prescribed Robaxin and treated with diathermy for a few days. In April 1964, the veteran was found to have a foreign body lodged in his right eye. It was surgically removed at a service hospital. Two check-ups later that month indicate that he was doing well. The remainder of his service medical records, including an annual reserve physical in May 1966 was negative for complaints or findings of any residuals of an eye injury. Service medical records are negative for back pathology, and the separation physical examination noted a normal back and 20/15 vision, bilaterally. The report of medical history taken at separation indicated the veteran did not suffer from recurrent back pain. In January 1967 he had no eye complaints and his vision was 20/20. Treatment notes dated from February 1982 to May 1986 outline the severity of the veteran's eye complaints but are negative for an opinion linking the pathology found to the veteran's active service. Associated with the claims folder is a voucher from the Employee Benefit Plan Administrators reflecting payment to the veteran of $42. for an injury sustained in September 1984. The insured group was the Granite Packing Company. The nature of the claim was not disclosed. A February 1992 Elliot Hospital medical report noted that the veteran received treatment following an injury at work. He complained of lumbosacral pain. An X-ray report noted probable spondylosis at L5 with five millimeters of spondylolisthesis onto S1 and moderately advanced disc disease at L5-S1. A May 1992 letter and treatment notes from N. R. Fasulo, a chiropractor reflect treatment of hip and low back pain. Surgery at the Catholic Medical Center in August 1992 resulted in a laminectomy at left L3-4, a laminectomy and foraminectomy at left L4-5 and excision of a herniated disc at L4-5, left. A November 1993 letter from Ronald J. Aragona, D.C., Ph.D., described the veteran's back problems but was negative for a link between his back condition and his active service. A December 1993 letter from Dr. Aragona's office was also negative for an opinion linking the veteran's condition to his service. Maurice Brunelle, D.C., in a December 1993 letter, reported treating the veteran for a back lesion in September 1984, an injury to the right shoulder in February 1986, a flare-up of back pain in 1989 and a severe on the job injury in February 1992 that required immediate attention. The letter described the treatments given to the veteran but was negative for an opinion attributing any of his symptoms to his service. Examination reports dated in March 1994 from Anthony A. Salerni, M.D. and in April 1994 from Sportsworks are negative for medical opinions connecting the veteran's complaints to his service. In May 1994 Ronald J. Aragona, D.C., Ph.D., opined that the veteran's low back spondylopathic insult, consisting of spondylolisis/spondylolisthesis of the lower lumbar segments was more probably than not, service related. He appeared to base this opinion on a history related by the veteran that in 1964, while in the "United States Service", he injured his back while pulling machines weighing in excess of 400 pounds. He also performed other ergonomically unfavorable acts, such as lifting and carrying heavy pipes. The chiropractor opined that since the veteran injured himself while performing these acts, it would appear logical to assume that the causative factor of trauma resulted in 1964 while he was in the U.S. Service. During the veteran's personal hearing in October 1994 he testified that he was pulling stuff on a submarine when he pulled something in his back. He was taken off duty for three weeks to a month. After service he went to Dr. Fasulo or Brunelle when his back went out. They would make adjustments and he would go back to work in a day or two. He started having more problems in the late 1960s and more in the 1970s. Two physicians told him that his particular injury would not have bothered him to the extent it did until he hurt himself in 1992 and had a herniated disc removed. Now he had pressure and spondylolisthesis. His mother testified that after service the veteran had to have alcohol baths every night after his shower. He had trouble getting up; acting like an old man. His sister testified that he had problems getting out of bed and that she gave him alcohol rubs for his backaches. His friend testified that the veteran could not sit in one position in the 1960s and 1970s and that he complained of backaches. Another friend testified that he had known the veteran four years and that the veteran wore a foam brace for his back. He had seen the veteran fall to the floor in pain while dancing. He saw him fall once at his house; his hip went out and he was laid up for three or four days as a result. Regarding his eye condition the veteran testified that a piece of metal got embedded in his right eye in 1963. The object was surgically removed from his eye. He testified that that he had had ulcers in his eye since and that now the ulcers would go from one eye to the other. He stated that he had had three emergencies with his eyes and that his eyesight had weakened faster than it should. One of the veteran's friends testified that she remembered going to the emergency room and being told that the veteran's eye was ulcerated. The issue of service connection for the back disorder was referred to the VA Compensation and Pension (C & P) Service for administrative review and an opinion. In an October 1995 statement, the Director of the C & P Service reported the facts of the case, including a recitation of the service medical record notations, as well as private medical reports. The Director concluded that the single episode of non-trauma back problems in service coupled with the onset of back pathology 20 years later did not establish chronicity. A denial of service connection for the back pathology was recommended. A rating decision dated in November 1996 denied service connection for the back condition and found that the eye claim was not well grounded. During the veteran's personal hearing in December 1997 he testified that he had not been able to work since he had a herniated disc removed in 1992. The doctors had had told him that a previous injury was causing spondylolisthesis and now that a disc had been removed there was pressure on the left hip. He alleged that the previous injury occurred when he tried to pick up a welding machine in service. He was taken off duty for around 30 days. He wore a brace and took medications during the 30 days. He did not receive any treatment after the 30-day period. The veteran stated that he had no back problems until a year or a year and a half after service when his back started going out for nothing. He went to chiropractors off and on as needed. The veteran testified that he had never injured his back in any way other than the times in service. Regarding his eye condition the veteran repeated that a fragment lodged in his eye and was surgically removed in service. His eye took a couple of weeks to heal he had dryness in it but never went to sick bay because of it. He stated that he had had no other eye injuries. He related his eye condition to the service because his representative thought it might be. During his hearing before a member of the Board in March 1999 the veteran repeated his history of one injury to his back in service. He added that he was also injured when he fell from a ladder while in service. He was taken off duty for about a month and received medications during that time. He stated that the service had records indicating that he was treated for that incident. He testified that he had had no back problems prior to service. Two or three years after service it started kicking out on him and kept going like that until his herniated disc was removed in 1992. He testified that he was receiving Social Security Administration benefits for spondylolisthesis and degenerative arthritis of the spine. Analysis Spondylolisthesis and Spondylosis with Degenerative Disc Disease of the Lumbar Spine Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (specifically addressing claims based ionizing radiation exposure). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arthritis). In the present case, the veteran did have complaints of back pain during service. However, his complaints involved the mid-back, not the low back. Although the veteran began to have back complaints in 1984, they appear to be related to an occupational injury, as was his 1992 low back problem that ultimately resulted in lumbar spine surgery. While Dr. Aragona's May 1994 statement seems to establish a nexus between the service back complaints and the present pathology, his opinion is based on a history provided by the veteran, and not a review of the service medical records or other medical documents. The Board is not required to accept doctors' opinions that are based upon the appellant's recitation of medical history. Godfrey v. Brown, 8 Vet.App. 113 (1995). The physician's statements are further refuted by the finding of the October 1996 VA C & P Service review. In conclusion, the evidence fails to establish that the acute and transitory episode of non-traumatic mid-back pain during service resulted in the development of chronic lumbar pathology. Service connection must be denied. Eye Condition A person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464 (1997); Caluza v. Brown, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. The veteran has submitted no medical evidence or medical opinions to substantiate his claim that any current eye pathology is related to his active service. The treatment notes and the letter from Dr. Brown are negative for any link between his ulcerated corneas and his service. The Board has considered the testimony of the veteran and others as well as the medical evidence, however, absent favorable medical evidence or medical opinions the veteran's claim is not well grounded and must be denied. Espiritu, Robinette. Although where claims are not well grounded the VA does not have a statutory duty to assist the claimant in developing facts pertinent to the claim, the VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete the application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claims. Robinette. In this case, the RO fulfilled its obligation under § 5103 (a) in the November 1996 and March 1998 supplemental statements of the case in which the appellant was informed that the reason for the denial of the claim was that there was no evidence linking his current eye disorder to his service. Furthermore, by this decision, the Board is informing the appellant of the evidence which is lacking and that is necessary to make the claim well grounded. ORDER The appeal of the issue of service connection for spondylolisthesis and spondylosis with degenerative disc disease of the lumbar spine is denied. The appeal of the issue of service connection for an eye condition is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals