Citation Nr: 0005368 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-20 319A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a neck (cervical spine) disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for alcohol dependence (alcoholism). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from November 1976 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May and June 1997 rating decisions of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in Philadelphia, Pennsylvania. In the May 1997 rating action, the RO&IC denied, as not well grounded, the veteran's claims for service connection for cervical spine and low back disabilities. In the June 1997 rating decision, the RO&IC denied his claim for direct service connection for alcohol dependence on the basis that, as a matter a law, it was due to willful misconduct. The veteran timely appealed these determinations to the Board. In a July 1997 statement, which was received at the RO&IC that same month, the veteran asserted an informal claim for service connection, on a direct basis, for "a nervous condition." In that same statement, the veteran further asserted that he had cervical spine and low back disabilities as secondary to his nervous condition. To date, none of these claims has been considered, and they are referred to the RO&IC for any and all appropriate action. In September 1999, the veteran, accompanied by his accredited representative, testified at a video-conference hearing before the undersigned Board Member. FINDINGS OF FACT 1. No competent evidence has been submitted to show that the veteran currently has either a cervical spine or low back disability that is due to disease or injury that was incurred in or aggravated by service. 2. The veteran's claim for service connection for alcohol dependence related to his active service was received in May 1997. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of well-grounded claims for service connection for cervical spine or low back disabilities. 38 U.S.C.A. §§ 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). 2. Service connection for alcoholism, based on direct service incurrence, is precluded as a matter of law. 38 U.S.C.A. §§ 105, 1131 (West 1991); 38 C.F.R. § 3.301 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service connection for cervical spine and low back disabilities To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the veteran's service, or by evidence that a presumption period applied. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, the preliminary question to be answered is whether the veteran has presented evidence of well-grounded claims of entitlement to service connection for cervical spine and low back disabilities. A well-grounded claim is not necessarily a claim that will ultimately be deemed allowable. It is a plausible claim, properly supported with evidence. See 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464 (1997); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to the claim, and the claim must fail. See Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order for a claim for service connection to be well- grounded, there must be competent evidence (lay or medical, as appropriate) of: (1) a current disability; (2) an in- service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Epps, 126 F.3d at 1468; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the case law of the United States Court of Appeals for Veterans Claims (formerly known as the United States Court of Veterans Appeals) (Court), lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) if the condition (1) is observed during service or any applicable presumption period; (2) continuity of symptomatology is demonstrated thereafter; and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). The service medical records show that the veteran was seen on several occasions for complaints of low back and neck pain, and as pointed out by the veteran, in February 1982, an in- service examiner indicated that he had possible cervical spine nerve compression. Other findings were tense neck muscles and pulled neck muscle. However, the Report of Medical Examination at separation from service, dated in July 1985, shows that the veteran's head, face, neck and scalp, as well as his spine and musculoskeletal systems, were each noted to be normal. In his statements, and during his August 1997 hearing before a hearing officer at the RO&IC and before the undersigned Board Member via video-conference in September 1999, the veteran essentially maintained that service connection was warranted for each of these disabilities on the basis that he had had chronic neck and low back problems since service. In particular, the veteran cited to an incident in which the ship upon which he was serving collided with another vessel. The veteran maintains that, as a result, he and many of his fellow servicemen sustained injuries. In addition, the veteran reported that he had no neck or low back problems prior to his period of military service. He also indicated that, although the disabilities were productive of chronic, recurrent and "nagging" pain, he thought that he could "live with it" and therefore did not seek formal medical care. Finally, the veteran said that he had not suffered injuries to his neck and low back since service. The post-service medical evidence includes VA examination reports dated in November and December 1985, November 1987, April 1991 and in February and October 1997. A review of these reports shows that, prior to February 1997, they are negative of any diagnosis or finding of either low back or neck disability. The veteran did complain of pain in the back of the neck during examination if April 1991; however no findings were recorded. In addition, although low back and cervical spine disabilities were diagnosed on the February and October 1997 examinations, neither examiner offered an opinion with respect to the etiology of the disabilities. Similarly, the VA outpatient treatment records associated with the claims folder, dated from November 1986 to September 1997, reflect that the veteran began receiving treatment for these disabilities in 1996; however, there is no competent medical opinion linking either of these disabilities to his period of service. Also of record are five VA hospitalization reports, dated from March 1989 to April 1997. As noted by the RO, the first indication in these reports that the veteran had either a low back or neck disability is contained in the August 1996 hospitalization report; again, however, that report, and those dated subsequent to it, do not even suggest a relationship between either of the veteran's current disabilities and his period of military service. Finally, records obtained from the Social Security Administration (SSA) reflect that the veteran has been awarded disability benefits from that agency. However, those records, which show that the veteran has cervical spine and low back disabilities, also do not contain medical evidence linking either of those disabilities to the veteran's period of military service. The Board does not question that the veteran sincerely believes that his current cervical spine and low back disabilities are related to his period of service, to include the trauma that he reports that he sustained as a result of a collision with another vessel that occurred while he was in the Navy. The Board notes, however, that as a layperson, the veteran is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In order for the veteran's claims for service connection for cervical spine and low back disabilities to be considered well grounded, he must submit medical evidence indicating that an etiological relationship exists between those disabilities and service. The Board therefore concludes that without the requisite competent medical evidence attributing either of these disabilities to service, his claims for service connection for cervical spine and low back disabilities are not well grounded. Epps; Caluza. Alternatively, even though the veteran has maintained that he has had chronic cervical spine and low back disabilities since service, he has not submitted competent medical evidence to support this allegation. Although a veteran is competent to report continuity of symptomatology, as a lay person, he is not competent to relate that symptomatology to his current cervical spine and low back disorders. Consequently, because the veteran is not shown to have any medical expertise, and because competent medical evidence relating his current conditions to either an in-service injury or to continuous symptomatology is required, his claims are also not well grounded under 38 C.F.R. § 3.303(b). See Hodges v. West, No. 98-1275 (U.S. Vet. App. January 12, 2000); Voerth v. West, 13 Vet. App. 117, 120 (1999). This case is similar to Hodges. In that case, the Court determined that, although the veteran's stomach condition was noted during service and there was "abundant" evidence of post-service continuity of "stomach-disorder symptomatology" based on the appellant's own accounts, as well as medical corroboration of continuous stomach problems, the veteran's claim was not well grounded. The Court stated that, although there was sufficient evidence to satisfy the first two elements of a well grounded claim under section 3.303(b), the veteran had not submitted sufficient evidence of nexus between the present disability and the post-service symptomatology. In doing so, the Court acknowledged that his in-service symptoms appeared to be very similar to the symptoms that he reported at a post-service examination and there was a complete absence of medical evidence showing a common underlying cause of those symptoms. Id., slip op. at 6-9. Under these circumstances, the Board finds that the veteran has not met his initial burden of submitting evidence of a well grounded claims for service connection for cervical spine and low back disabilities and therefore the claims must be denied on that basis. See 38 U.S.C.A. § 5107(a). The Board notes that, in the absence of well-grounded claims, VA is under no duty to assist the veteran in the development of the facts pertinent to the claim, Morton v. West, 12 Vet. App. 477 (1999), including having the veteran undergo an additional examination, Yabut v. Brown, 6 Vet. App. 79 (1994). Furthermore, the Board is not aware of the existence of any evidence, which, if obtained, would render the claim well grounded. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). Indeed, at his September 1999 hearing, the veteran acknowledged that all pertinent medical records had been associated with the claims folder. He further admitted that no doctor had ever told him that a relationship existed between current disability and any incident of military service. The Board views its (and the RO&IC's) discussion above as sufficient to inform the veteran of the elements necessary to present a well-grounded claim for service connection for the claimed disability, and the reasons why the current claims is inadequate. See Robinette, 8 Vet. App. 69, 77-78 (1995). II. Service connection for alcohol dependence The veteran's claim for service connection for alcoholism was received in May 1997. In his statements and hearing testimony, the veteran essentially asserts that service connection is warranted for this disability on the basis that he became an alcoholic during service. In this regard, he points out, and the service medical records confirm, that he received substantial treatment for this disability during service. In addition, he argues that service connection is warranted because the evidence "clearly shows" that he had this disability to a compensable degree prior to October 31, 1990. For claims filed prior to October 31, 1990, service connection was permitted for organic diseases and disabilities which were a secondary result of the chronic use of alcohol or drugs, because such organic disease or disability was not considered to be of willful misconduct origin. See 38 C.F.R. § 3.301(c)(2), (3) (1990). For this reason, service connection was established in the veteran's case for pancreatitis and hepatitis, both of which were organic diseases arising from his alcohol abuse. The Omnibus Budget Reconciliation Act of 1990 (OBRA 1990), Pub.L. No. 101-508, § 8052, 104 Stat. 1388, included amendments to statutes governing VA benefits, including 38 U.S.C. § 105 which no longer permits a finding that an injury or disease was incurred in line of duty if it resulted from the abuse of alcohol or drugs. In other words, had the veteran's claim for service connection for pancreatitis and hepatitis been filed after October 31, 1990, service connection would have been denied for both, even though they were noted in service, because they would not have been found to be in line of duty. Prior to October 31, 1990, service connection would not have been established for alcoholism itself, because such would not have been found to be incurred in the line of duty. Turning now to the veteran's claim for service connection for alcoholism, filed after October 31, 1990, the following are applicable. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131 (West 1991). Significantly, however, direct service connection may be granted only when a disability was not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 1991) and 38 C.F.R. § 3.301 (1999). The term alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. See 38 C.F.R. § 3.301(d) (1999). The VA General Counsel has interpreted these provisions to mean that a substance abuse disability cannot be service connected on the basis of its incurrence or aggravation in service. See VAOPGCPREC 11-96. See also VAOPGCPREC 2-98. The above referenced statute passed by the Congress, the regulation promulgated by VA, and the opinions by the VA General Counsel are clear and specific in precluding grants of service connection for alcoholism based on claims of direct service incurrence, and the Board is bound by them. Where, as here, the law and not the evidence is dispositive, the appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the veteran's claim must be denied as a matter of law. ORDER In the absence of evidence of well-grounded claims, service connection for cervical spine and low back disabilities is denied Service connection for alcohol dependence is denied. N. R. ROBIN Member, Board of Veterans' Appeals