Citation Nr: 0004528 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 95-29 354 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a shoulder injury. 2. Entitlement to service connection for residuals of an injury to the cervical spine. 3. Entitlement to service connection for residuals of an injury to the dorsal spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active service from January 1977 to August 1982. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 1994 rating action in which the RO denied service connection for residuals of injuries to the knees, shoulders, neck, and upper back. In a decision dated in November 1997, the Board denied service connection for residuals of knee injuries. Hence, this matter is no longer before the Board. The Board remanded the issues of entitlement to service connection for residuals of neck, upper back, and shoulder injuries for further development. After completion of the requested development, in September 1999, the RO continued the denial of service connection for residuals of neck, upper back, and shoulder injuries. These issues are now again before the Board. The veteran was afforded a hearing before the undersigned Member of the Board at the RO in June 1997. A transcript of the hearing is of record. FINDINGS OF FACT 1. There is no competent medical evidence establishing that the veteran current has a right shoulder disability. 2. There is competent medical evidence linking the veteran's current cervical spine disability to injury during his active military service. 3. There is competent medical evidence linking the veteran's current dorsal spine disability to injury during his active military service. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim with respect to the issue of service connection for residuals of shoulder injury. 38 U.S.C.A. § 5107(a) (West 1991). 2. A cervical spine disability was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 19991); 38 C.F.R. § 3.303 (1999). 3. A dorsal spine disability was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The contends, in effect, that his shoulder, neck, and upper back problems result from injuries sustained during active duty when a portable X-ray unit fell on top of him. A review of the service medical records reveals that in August 1981, the veteran complained of pain in his right shoulder to his mid forearm as a result of a water-skiing accident during which he sustained a rope burn to his right upper arm. He did not sustain a fracture. There was full range of motion of the right shoulder and elbow. Strength was painful but within normal limits. The diagnosis was contusion and strain of the biceps and deltoid muscles. During follow-up visits scheduled the next week, improvement was shown, with the exception of mild discomfort in the anterior deltoid. There was full range of motion of the right elbow. Service medical records dated in May 1982 show that the veteran complained of pain in his right shoulder, right lower thoracic cavity and right neck pain as a result of hydraulic left which had broken, causing an X-ray unit to fall on him. Examination revealed mild tenderness over the right paranuchal area, right post inferior rib cage, right parapsinal lumbar area. The diagnosis was musculoskeletal pain. During a follow-up visit several days later, the veteran was noted to have pain in his shoulder area. Examination revealed musculoskeletal pain in the paranuchal area. The assessment was musculoskeletal pain. On the "Report of Medical History" associated with the report of separation examination in June 1982, the veteran marked that he had had a painful or trick shoulder or elbow, and recurrent back pain. He also indicated that he was unable to comfortably touch his toes. The examining physician noted that the veteran had back pain but that there was no demonstrable pathology. Discharge examination was negative for any findings or diagnoses pertaining to the shoulder, neck, or back. VA outpatient treatment records dated from April 1983 to August 1995 document numerous complaints of neck and back pain. On several occasions, the veteran provided a history of injury to his back and neck during service. It was noted that the veteran had chronic, intermittent back and neck pain. Assessments included cervical neck strain and back pain. A letter of medical treatment dated in August 1994 was received from Mark A. Dumas, D.C. Dr. Dumas noted that the veteran first received treatment for pain in his upper back and left scapula in May 1991. He stated that the veteran's condition was chronic and recurrent. Over the past four years, the veteran received treatment 48 times. The extent of his pain was limited to the neck, upper thoracic spine, left shoulder, and arm. His symptomatology was persistent but controlled. The veteran was afforded a hearing before the undersigned Member of the Board at the RO in June 1997. He testified that he first underwent treatment for his neck, back, and shoulder problems in 1982, and that he had seen a chiropractor, Mark A. Dumas, from 1984 to 1986. He stated that he had been diagnosed with a cervical disability, and that shortly thereafter, he sought treatment from his brother, who had then become a chiropractor. In November 1997, the Board remanded the issues of entitlement to service connection for residuals of a neck, upper back, and shoulder injuries to the RO for further development. The RO was instructed to obtain any additional treatment records, (in particular, treatment records from Dr. Dumas), and to provide a VA examination to determine the etiology of any current neck, upper back, and shoulder disorder. A letter of treatment dated in March 1998 was received from Dr. Dumas. Dr. Dumas stated that the veteran received chiropractic care for mid back pain and numbness in the chest beginning in May 1991. He noted that the veteran came to his office 45 times to receive heat therapy, intersegmental traction and spinal manipulation. He stated that the veteran was diagnosed with acute, constant, moderate to severe pain in the thoracic spine. The veteran was afforded a VA orthopedic examination in July 1998. The veteran provided a history of injury to his neck and upper back in 1981 while he was moving a portable X-ray machine. At the time, nothing was broken or fractured. He reported that, since that time, he has had chronic neck and upper back pain that radiated in and around the shoulders. No specific shoulder pain or shoulder injury was noted. He stated that he gets aches and pains, soreness and crepitation with motion of his cervical spine. On examination, the cervicodorsal spine did not show any obvious deformities. There was some cervical spine muscle tenderness and soreness around the neck and between the shoulders. The veteran could rotate his neck 60 degrees to the right and left and flex and extend 30 to 40 degrees with pain at the extremes of motion. There was excellent full range of motion in the shoulders. There was no shoulder pain, tenderness, soreness, or abnormalities identified. There was normal neurological strength and sensation. There was local mottling in his hands. There were good peripheral pulses. The diagnosis was cervical and dorsal strain with arthritis. The examiner commented that in reviewing the record, it appeared that the veteran's ongoing symptoms of chronic cervical and dorsal strain are indeed related to the injury he incurred in service. He further stated that no primary shoulder pathology could be identified. The VA examiner who conducted the July 1998 VA orthopedic examination provided an addendum dated in May 1999. He reiterated that the veteran's chronic neck and upper back pain did indeed start in service, and that this is well documented throughout the claims file. He noted that there were multiple episodes of neck and upper back pain. He did acknowledge that the veteran's work as a letter carrier could aggravate his symptoms, but he could not state as to what degree. In a September 1999 SSOC the RO continued to deny service connection for residuals of an injury to the neck, shoulder, and upper back. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). The threshold question to be answered with respect to each claim for service connection is whether the veteran has presented evidence of a well-grounded claim, that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim because such development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinksi, 1 Vet. App. 78 (1990). As will be explained below, the Board finds that his claim for service connection residuals of a shoulder injury is not well grounded. The United States Court of Appeals for Veterans Claims (formerly, the Court of Veterans Appeals) (Court) has held that evidentiary assertions on or accompanying a claim for VA benefits must be accepted as true for the purpose of determining that the claim is well-grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (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 inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). 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 Court's case law, 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 is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). A. Residuals of Right Shoulder Injury The Court has held that Congress specifically limited entitlement to service-connection for disease or injury to cases where such incidents had resulted in a disability; in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 2 Vet.App. 223 (1992). In this case, thorough examination of the veteran has failed to reveal the presently claimed shoulder disability. The July 1998 VA examiner determined that there was no evidence of a shoulder disability. Further, the veteran has not presented, or indicated the existence of, medical evidence establishing that he current has such a disability, notwithstanding notation of shoulder pain in the service medical records.. Thus, the first Caluza requirement requiring a current disability has not been met. While the veteran may well believe that he current has a shoulder disability as a result of his in-service injury, as a layperson without medical training or expertise, he is not competent to render an opinion on such a medical matter. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The Board notes that a well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of competent medical evidence to support the claim, the claim is not plausible. As such, the VA is under no duty to assist the veteran in developing the facts pertinent to the claim. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Furthermore, the Board is aware of no circumstances in this matter that would put the VA on notice that any additional relevant evidence may exist which, if obtained, would well-ground the appellant's claim of entitlement to service connection. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Because the also denied the claim for service connection for right shoulder disability as not well grounded, clearly, there is no prejudice to the veteran in the Board doing likewise. Furthermore, inasmuch as the August 1999 Supplemental Statement of the Case includes a discussion of the well-grounded claim criteria, and an explanation of why the claim was denied, the Board finds that the duty to inform has been met. See 38 U.S.C.A. § 5103(a); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). B. Residuals of Injuries to the Cervical and Dorsal Spine Initially, the Board finds that the appellant's claim for service connection for a right knee disorder is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim, which is plausible. See Murphy, 1 Vet. App. at 81. Furthermore, after reviewing the record, the Board is satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which might pertain to the issue on appeal. No further assistance to the appellant is required to comply with the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a). As noted above, in order to establish service connection for a disability, there must be objective evidence that establishes that such disability was either incurred in or aggravated by service. 38 U.S.C.A. § 1131. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). 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. See 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Cosman v. Principi, 3 Vet. App. 503, 505 (1992); Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Board notes that service medical records document injury to the veteran's neck and upper back. Shortly after service, numerous VA treatment records reveal complaints and treatment of chronic upper back and neck pain. The July 1998 VA examiner provided a current diagnosis of chronic cervical and dorsal strain. The examiner specifically stated that the veteran's chronic cervical and dorsal strain are related to his injury in service; there is no contrary medical opinion of record. Under these circumstances, the Board finds that the evidence clearly supports the grant of service connection on a direct service-incurrence basis for a cervical spine and dorsal spine disability. ORDER In the absence of evidence of a well-grounded claim, service- connection for residuals of an injury to the shoulder is denied. Service connection for residuals of an injury to the cervical spine is granted. Service connection for residuals of an injury to the dorsal spine is granted. JACQUELINE E. MONROE Member, Board of Veterans' Appeals