Citation Nr: 0004979 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 96-45 515 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for cervical strain. 2. Entitlement to service connection for a right shoulder disorder. ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran had active service from July 1986 to May 1995. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Cervical strain was incurred in service. 2. Competent medical evidence of a right shoulder disorder is not of record. CONCLUSIONS OF LAW 1. Cervical strain was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The veteran's claim of entitlement to service connection for a right shoulder disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that she experiences constant neck and right shoulder pain as a result of a car accident in service. As she is seeking service connection for residuals of a neck injury and a right shoulder disorder on the basis that these disorders are related to service, it is necessary to determine if she has submitted a well grounded claim with respect to each issue. In making a claim for service connection, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To establish that a claim for service connection is well grounded, a veteran must demonstrate the incurrence or aggravation of a disease or injury in service, the existence of a current disability, and a nexus between the in service injury or disease and the current disability. See Epps v. Gober, 126 F.3d 1464 (1997). Competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates is required to provide a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); see also 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Moreover, establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. at 81. An injury during service may be verified by medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis; and where an opinion is used to link the current disorder to a cause during service, a competent opinion of a medical professional is required. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, 38 U.S.C.A. § 1131 (West 1991), or for disability that is proximately due to or the result of service connected disability, 38 C.F.R. § 3.310(a). Alternatively, a claimant may establish a claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b), which is applicable where evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period, and that that same condition currently exists. Such evidence must be medical unless the condition at issue is a type as to which, under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, service connection may be granted pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage, 10 Vet.App. at 495-98. The veteran has not alleged that she served in combat and the evidence of record does not indicate that she served in combat. Thus, 38 U.S.C.A. § 1154(b) (West 1991) is not applicable in this case. A. Cervical strain The veteran contends that her cervical spine injury was a result of a car accident in service and she has continued to experience cervical spine problems. The veteran's service medical records reveal that the veteran was seen in January 1990 complaining of pain in the lower neck area after being involved in a car accident. It was noted that she was transported by ambulance on a spine board and had a cervical collar. X-rays of the cervical spine revealed no evidence of fracture or dislocation and there were no loose bodies or joint effusion. Subsequent medical records, including physical therapy records, show that the veteran complained of burning pain on right side of the neck. Findings included tenderness over the right cervical paravertebral muscles with moderate spasm and tenderness on lateral bending to the left. Range of motion of the cervical spine was decreased approximately 20 percent secondary to pain. Assessments included cervical strain, right lateral muscle strain, myofascial pain and tightness secondary to cervical strain. An August 1991 medical record shows that the veteran complained of neck pain and a history of car accident was noted. The assessment was right-sided paracervical spine muscle strain with mild muscle spasm. At her February 1995 separation examination, it was noted that the examination was deferred on basis of a recent November 1994 examination. However, a November 1994 examination is not of record. At the February 1995 examination, the examiner noted that the veteran reported chronic neck pain as a result of a car accident. At July 1995 VA general medical and spine examinations, the veteran complained of constant posterior neck pain. She reported past treatment included muscle relaxants and physical therapy as well as over-the-counter ointments and massage. The veteran's medical history included a report of whiplash injury secondary to a car accident. On evaluation, there was tenderness to palpitation over the paracervical muscle and moderate muscle spasm was noted. Range of motion of the cervical spine was normal with no objective evidence of pain. X-rays of the cervical spine were normal. The diagnoses included cervical strain and cervical muscle spasm. Private medical records dated in July 1996 show that the veteran was treated for complaints of neck pain radiating into the right arm. It was noted that she had been in a car accident in January 1990. On evaluation, her cranial nerves were grossly intact. A cervical steroid epidural was provided. The diagnosis was cervical pain with C-7 radiculopathy. The Board initially finds that the veteran has presented a plausible, well-grounded claim for service connection for her cervical spine disorder. The Board is also satisfied that the RO has obtained all evidence necessary for an equitable disposition of the veteran's appeal, and that all relevant facts have been fully developed. Upon review of the record, the Board finds that the evidence establishes entitlement to service connection for the veteran's cervical strain. The veteran's service medical records confirm that the veteran was involved in a car accident while in service, was treated for cervical strain at that time, and was treated for cervical strain several times thereafter. Further, it is apparent that she currently suffers from cervical strain as documented by VA examinations and private medical records. Moreover, the Board concludes that the service, VA, and private medical records discussed above provide the necessary nexus between the veteran's current cervical spine disorder and her car accident in service service. See Tirpak, 2 Vet. App. at 611; 38 C.F.R. § 3.303. Accordingly, the Board concludes that the evidence supports a finding of service connection for cervical strain. B. Right shoulder disorder Service medical records reflect that the veteran was seen in January 1990 complaining of pain right shoulder area after being involved in a car accident. X-rays of the right shoulder revealed no evidence of fracture or dislocation and there were no loose bodies or joint effusion. Subsequent medical records, including physical therapy records, show that the veteran complained of pain in trapezius muscles. Findings included tenderness over the right upper trapezius muscles with moderate spasm in the right upper trapezius muscle, tightness in both upper trapezius muscles, greater on the right. A right shoulder disability was not diagnosed. At her February 1995 separation examination, it was noted that the examination was deferred on basis of a recent November 1994 examination. However, a November 1994 examination is not of record. At the February 1995 examination, the examiner noted that the veteran reported chronic shoulder pain as a result of a car accident. At July 1995 VA general medical examination, the veteran complained of constant right shoulder pain with radiation into the neck. She reported past treatment included muscle relaxants and physical therapy as well as over-the-counter ointments and massage. The veteran's medical history included a report of whiplash injury secondary to a car accident. On evaluation, there was tenderness to palpitation over the right trapezius muscles and moderate muscle spasm was noted. The joints of the upper extremities were normal without joint deformity, swelling, or tenderness. There was no diagnosis of a right shoulder disorder. Subsequent private medical records show no complaints, findings, or diagnosis of a right shoulder disorder. Upon review of the record, the Board notes that the veteran submitted medical evidence that she was seen for right shoulder pain during service and subsequent to service. However, she has not brought forth evidence of a current diagnosis of right shoulder disability. Although both service and VA medical records indicate that the veteran complained of right shoulder pain and muscle spasms of the right trapezius muscles were noted on evaluations, neither the service nor VA medical records contain diagnoses of a right shoulder disorder. Moreover, private medical records do not contain a diagnosis of a right shoulder disorder. Thus, as to the claim for entitlement to service connection for a right shoulder disorder, the veteran's claim is not well grounded. See Caluza, supra. The Court has stated that "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau, 2 Vet. App. at 143-44. Because there is no evidence of a current and competent diagnosis of a right shoulder disorder, the Board must deny the claim as not well grounded. Id.; see also Caluza, 7 Vet. App. at 505. The veteran is competent to report that on which she has personal knowledge, that is what comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, her assertion that she has a right shoulder disorder is not competent and does not establish well grounded claim. Chelte v. Brown, 10 Vet. App. 268 (1997). Her statements cannot serve to well ground the claim because the veteran is not competent to make such an allegation, as such require competent medical evidence which indicates that the claim is plausible or possible. Caluza, 7 Vet. App. at 507; see also Robinette, 8 Vet. App. at 77; Edenfield, 8 Vet. App. 384; Grottveit, 5 Vet. App. at 93. As there is no competent evidence of a diagnosis of a right shoulder disorder either during service or thereafter, the Board concludes that the veteran's claim for service connection is not well grounded. Accordingly, the claim for service connection for a right shoulder disorder is denied. 38 U.S.C.A. § 5107 (West 1991). When addressing whether a claim is well grounded, after establishing the competency of the evidence, the veracity of the evidence is accepted. The weighing and balancing of the evidence of record occurs at the merits stage. Thus, the doctrine of doubt is not applicable where a claim is not well grounded as there is no evidence to weigh or balance. ORDER Service connection for cervical strain is granted. Service connection for a right shoulder disorder is denied. SANDRA L. SMITH Acting Member, Board of Veterans' Appeals