BVA9502966 DOCKET NO. 93-11 556 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for residuals of a lower back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran-appellant served in the active naval service from November 1954 to October 1958. This appeal arises from an April 1992 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he injured his lower back in service. He maintains that chronic back problems resulted from the injury, and continue at the present time. 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 claim of service connection for residuals of a lower back injury is not well-grounded. FINDING OF FACT The veteran has not submitted medical evidence to link his current lower back disability to service to justify a belief by a fair and impartial individual that the claim is plausible. CONCLUSION OF LAW The claim of service connection for residuals of a lower back injury is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records, including reports of entrance and discharge examinations, are void of any complaint, history or finding of lower back pain. The records do disclose that, in September 1957, the veteran received a severe bruise with hematoma formation and ecchymosis on the right buttock. X-rays and other examinations were negative. The injury was treated with hot packs and the veteran was placed on limited duty. In June 1978, Earl N. Armbrust, M.D., an orthopedist, examined the veteran upon complaint of lower back pain and stiffness, as well as pain in the upper back and neck. The veteran reported having been seen in January 1978 by a rheumatologist for an arthritis workup. X-rays revealed some anterior bone ridging and lipping of the 3rd, 4th and 5th lumbar disc spaces. On VA orthopedic examination in October 1979, the veteran complained of pain in the lower back, sacral, and hip joint areas. He stated that the symptoms began accelerating three years ago and forced him to quit operating heavy equipment and jackhammers. X-rays revealed a markedly degenerated lumbosacral disc and less dramatic early stages of spondylosis at other levels in the lumbar spine. No changes in the sacroiliac were detected. The impression was early arthritis or periarthritis of the hips. On examination with Martin E. Anderson, M.D., an orthopedist, in November 1980, the veteran complained of having had lower back pain for the last four years. He stated that he underwent surgery earlier in the year for spinal stenosis, consisting of partial removal of the fifth lumbar disc and arthritic osteophytes. He reported feeling better for about two months after the surgery. Upon inquiry, the veteran did not recall any specific injury to his back. In a June 1992 statement in support of the veteran's claim, E. S. B., a service comrade of the veteran, stated that in August 1957 he knew of the veteran being taken off a naval ship on a stretcher. Upon further inquiry, Mr. B. stated that he only "saw" the veteran being taken off the ship and that he did not have any medical training, experience or background. Upon the veteran's request, a hearing was held at the RO in October 1992. The veteran testified that: while loading supplies on a ship he fell through a hatch causing the edge of the hatch to strike him in the buttock's region; that he was taken to the hospital by stretcher where x-rays were performed; that he was placed on light duty for about six weeks after the accident; that he went to sick bay on several occasions because of the pain in his back, and that he has continued to experience lower back pain. Transcript, hereinafter T. at 1-3. He also testified that that between 1958 and 1978 he was examined by several doctors and chiropractors, but was unable to locate them or obtain their medical records; that the earliest medical records he was able to obtain were from 1978; that he underwent back surgery in 1980; and, that he still experiences lower back pain T. at 3-5. After discharge, he worked as a laborer or construction worker. T. at 6. Analysis As a threshold matter, one claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded. The United States Court of Veterans Appeals (Court) has defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Where the determinative issue involves medical causation or 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, 93 (1993). Against this background, the Board must decide whether the supporting evidence satisfies the requirements for a well- grounded claim. The supporting evidence in this case consists of letters from two private orthopedists, a letter from the chief orthopedist at the Veterans Administration Medical Center in Boulder Colorado, a statement from an individual aboard the veteran's naval ship at the time of the accident, and the veteran's testimony at the hearing. The Board rejects the veteran's statement linking his present lower back disability to any injury incurred in service as probative of a well-grounded claim. Such an opinion involves medical causation or medical diagnosis to the effect that the claim is "plausible" or "possible" as required under Grottveit. As the Court held in Espiritu v. Derwinski, 2 Vet.App. 492 (1992), lay persons are not competent to offer medical opinions, so the assertions of lay persons concerning medical causation cannot constitute evidence of a well-grounded claim. The medical reports of the three physicians, while constituting competent medical evidence as required by Grottveit, fail to link the veteran's current lower back disability to any in-service injury. Where the determinative issue is medical causation and without cognizable medical evidence to support the veteran's claim it cannot be well-grounded. The Board regards the statement of the witness in support of the veteran's claim as simply an observation that the witness observed the veteran being taken off the ship on a stretcher. He had no personal knowledge of the events that precipitated his observation. Thus, the statement is not probative on the issue of medical causation and fails to make the veteran's claim "plausible" or "possible" under Grottveit. Since the Board's decision does not reach the merits of the claims, it is not deemed a final decision of the Board. Thus, the Board's action allows the veteran to begin, if he can, on a "clean slate." Grottveit at 93. For this reason, the veteran is not prejudiced by the Board's finding that the claim is not well- grounded. See Bernard v. Brown, 4 Vet.App. 384 (1993) and Curry v. Brown, 7 Vet.App. 59 (1994). Competent medical evidence tending to show that chronic back disability had its onset in service or is related to active duty would be sufficient to establish a well-grounded claim. ORDER The issue of entitlement to service connection for residuals of a lower back injury not being well grounded, the appeal is dismissed. RENÉE M. PELLETIER 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.