Citation Nr: 0005635 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 97-02 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left hip disorder. 2. Entitlement to service connection for a lower back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The appellant had active service from May 1995 to April 1996. This appeal comes before the Board of Veterans' Appeals (the Board) on appeal as a result of rating decision in May 1996 by the Department of Veterans Affairs (VA) regional office (RO) in New Orleans, Louisiana. The veteran testified at a hearing at the RO in February 1997. A transcript of that hearing is in the claims file. This case was remanded by the Board in February 1999 for further development. The case was returned in January 2000. FINDINGS OF FACT 1. There is no competent medical evidence linking the veteran's current low back disorder to any incident of service. 2. The veteran's current left hip disorder may not be disassociated from the left hip injury he sustained in service. CONCLUSION OF LAW 1. The claim for service connection for a low back disorder is not well grounded, and there is no statutory duty to assist the appellant in developing facts pertinent to these claims. 38 U.S.C.A. § 5107(a) (West 1991). 2. Service connection for a left hip disorder is granted. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background The service medical records disclose that the veteran slipped and fell in September 1995, injuring his left hip. He received a physical profile. A bone scan was negative. He had several additional complaints of left hip pain in 1995. In September 1995, he complained of lower back pain. No low back pathology was noted. On an examination prior to separation in March 1996, he had no complaints or manifestations of a low back disorder. On a VA examination in May 1996, diagnoses included no objective findings of the lumbar spine, and no objective findings of acute sprain of both hips. A VA outpatient report discloses that the veteran was seen with complaints of left hip pain in October 1996. The veteran testified in February 1997 that within one week of discharge, he began receiving treatment at the VA Medical Center. He stated that in service he was told that he had tendonitis of both hips. He also complained of sharp pains in the low back and claimed all of his orthopedic conditions were due to a shot he received in service. On a VA hip examination in April 1997, a left hip or lumbar spine disorder were not noted. An x-ray of the left hip showed a probable bone island superimposed over the left femoral head. It was otherwise unremarkable. The x-ray of the lumbar spine showed minor levoscoliosis of the lumbar spine with no other abnormality identified. The veteran underwent a VA joint examination in April 1999. The examination of the lumbar spine showed that he had flexion to 90 degrees and extension of 40 degrees to the right and 40 degrees to the left. He had 40 degrees of rotation bilaterally. There was some tenderness in the lower lumbar spine. Straight leg testing was negative and reflexes were equal. He was able to toe and heel walk without difficulty, and there was no spasm or deformity. All x-rays were normal. The diagnoses were mechanical back pain and trochanter bursitis of the left hip. In an addendum prepared in July 1999, the examiner stated that the left hip disorder was related to injuries in service. He also stated that the veteran's lumbar sprain was not related to service. At this time, the veteran had a lumbar sprain with some questionable findings at the present time. Legal Analysis Entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991). In making a claim for service connection for a disorder, the claimant 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) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has defined the term "well-grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has further noted that "[a]lthough the claim need not be conclusive, the statute provides that it must be accompanied by evidence." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); 38 U.S.C.A. § 5107(a) (West 1991). Moreover, the Court has stated that "[t]he quality and quantity of the evidence required to meet this statutory burden . . . will depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Where the issue in a case is factual, competent lay evidence may suffice; however, "where the determination involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Id. at 93. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A claim for service connection requires three elements to be well-grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Truthfulness of the evidence is presumed in determining whether a claim is well-grounded. Id. at 504. When a disorder had its onset is a medical question involving medical evidence for its resolution, and therefore "competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required" to establish a well-grounded claim for service connection on a direct basis. Grottveit, 5 Vet. App. at 93. Service connection for a low back disorder. The service medical records do disclose complaints of lower back pain. However, there was no evidence of any low back problem on the examination in March 1996, shortly before discharge from service. In addition, on the initial VA examination in May 1996, there were no objective findings of a low back disorder. A lumbar spine disorder was not noted on the VA examination in April 1997. Furthermore, although a lumbar spine problem was noted on the VA examination in April 1999, the examiner in the addendum in July 1999, clearly stated that the veteran's lumbar sprain was not related to service. The Board is aware, as contended, that the examiner did not provide a rational for this opinion. However, until a claim is well grounded, the VA has no duty to provide a rational. The veteran must present evidence of the link between inservice disability, and a current disability. The veteran has not presented such evidence, and therefore this claim is not well grounded. In Epps v. Brown, 9 Vet. App. 341 (1996), the Court stressed that Robinette v. Brown, 8 Vet. App. 69 (1995), held that 38 U.S.C.A. § 5103(a) imposes an obligation upon the Secretary to notify an individual of what is necessary to complete the application in the limited circumstances where there is an incomplete application which references other known and existing evidence. The Court found in Epps, however, that the appellant's application was not incomplete and the VA was not on notice of the existence of any evidence which would have made the claim plausible. In this case, the appellant has not put the VA on notice of the existence of any additional evidence pertaining to the low back disorder which would have made this claim plausible. Left hip disorder. The service medical records disclose left hip problems following a fall in September 1995. After service, the veteran again manifested a left hip disorder. In addition, in the addendum prepared in July 1999, the VA examiner attributed the veteran's left hip problems to service. Therefore, service connection is warranted for the left hip disorder. ORDER The claim for a low back disorder is not well grounded and is therefore denied. The claim for a left hip disorder is granted, and to this extent the appeal is allowed. NANCY I. PHILLIPS Member, Board of Veterans' Appeals