Citation Nr: 0005372 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-48 815A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Rogers, Associate Counsel INTRODUCTION The veteran had active duty in the Air Force from November 1969 to July 1973. This matter comes to the Board of Veterans' Appeals (Board) from a July 1996 rating decision of the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO), in which the RO denied entitlement to service connection for a lumbar spine disorder and a left ankle disorder. The veteran perfected an appeal of the July 1996 decision. FINDINGS OF FACT 1. All relevant evidence necessary for an informed decision on the veteran's appeal has been obtained by the RO. 2. The claim of service connection for a lumbar spine disorder is not plausible. 3. The claim of service connection for a left ankle disorder is not plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a lumbar spine disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim of entitlement to service connection for a left ankle disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records indicate that in April 1971 the veteran was treated for low back strain. In May 1971, the veteran twisted his left ankle while running and a walking cast was applied. An X-ray report showed no evidence of a recent injury, but there was multiple calcification due to old injuries. In June 1971 the veteran again received treatment for his left ankle and his cast was taken off after two weeks of immobilization. In August 1971, the veteran injured his back while playing football. The examiner noted that the veteran had pain in the lumbar area, but no paresthesia or radiating pain. Upon physical examination, the veteran had tenderness over the paravertebral area at L4-5, muscle stretch reflexes were 2+ and straight leg raising was negative. Thereafter, the veteran received occasional treatment for low back strain and a sprained ankle. An April 1973 report of medical history noted that the veteran had low back strain and sprained his left ankle from intramural sports, no sequelae, except for heavy exercise. In August 1993 the veteran received treatment at a VA Medical Center (MC) for complaints of chronic ankle discomfort. A September 1993 VAMC treatment report noted instability of the lateral ligaments of the left ankle. The veteran told the examiner that he injured his left ankle while in service and he also reported that he walked a half-mile every other day. In June 1995, while working as a machinist, the veteran injured his lower back during an industrial accident. A September 1995 X-ray impression was L4-L5 degenerative bone and disk changes with a five millimeter disk protrusion centrally and eccentric toward the left with mild extension toward the right encroaching on the thecal sac and descending left L5 nerve root. At L5-S1 there was mild degenerative bone and disk changes. From September 1995 to March 1996, the veteran received treatment at a VAMC for chronic low back pain. In March 1996 the veteran submitted several private medical reports dated January 1996 to March 1996 showing treatment for a lumbar spine disorder. The veteran initially claimed entitlement to VA disability compensation in March 1996, at which time he indicated that he had a back disorder and an ankle disability as the result of service. During an April 1996 private medical examination, the veteran complained of constant lower back pain with occasional cramping throughout the entire bilateral lower extremities. The private physician noted that the veteran suffered an injury at work in June 1995 at which time he developed acute low back pain. As a result of the injury, the veteran had significant low back pain and pain radiating into the right lower extremity. The private physician also stated that the veteran's back disability was the result of the accident he sustained in June 1995 while at work. During an April 1996 examination at a VAMC, the veteran again reported having a history of a left ankle disorder since service. According to the veteran, his ankle has not gotten any better and whenever he steps onto something his ankle snaps off and then pops back into place. The veteran also stated that in early April he twisted his left ankle and as a result it became swollen, red, and painful. The veteran explained that despite taking pain medication, the pain persisted. It was also noted that the veteran had episodic left ankle swelling and popping twice during the year. An April 1996 X-ray impression of the left ankle was severe post-traumatic osteoarthritis with an inferior calcaneal spur. In May 1996 and September 1996, the veteran continued to receive treatment at a VAMC for chronic low back pain and left ankle trauma. An October 1996 private medical report noted lumbar disc desiccation at L4-5 and L5-S1. In January 1997 the veteran underwent surgery for herniated discs of the lumbar spine. It was noted that the veteran had long-standing lumbar spine complaints secondary to an industrial injury. During a February 1997 personal hearing the veteran described the injuries he sustained to his back and left ankle while in service. He also discussed the treatment he received during service and post-service. The veteran stated that in addition to injuring his back in June 1995, he pulled his back out on the job in 1981 and he strained his back when helping a friend move a couch. The veteran also stated that he is currently using a walker and back brace for his back disorder. As to his left ankle, the veteran explained that his ankle is very unstable when he is not wearing high topped-shoes. A December 1997 private medical report indicates that the veteran is receiving treatment once a week to reduce pain and inflammation and to promote increased range of motion in the lower back. II. Laws and Regulation Under the law, service connection can be granted for any disability resulting from disease or injury incurred in or aggravated during active military service in wartime. 38 U.S.C.A. § 1110, 1131 (West 1991). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The threshold question that must be resolved with regard to the claim is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd , 126 F.3d 1464 (Fed.Cir. 1997), cert. denied, 118 S.Ct. 2348(1998). A well- grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed Cir. 1996)(table). Alternatively, the second and third elements can be satisfied by evidence showing that a disorder was noted during service or any applicable presumptive period, evidence of post- service continuity of symptomatology, and medical or, in some circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. In addition, if the claim for service connection pertains to a disease rather than the residuals of an injury, a well grounded claim can be established by evidence showing a chronic disease in service or during any applicable presumptive period and present disability from that disease. See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997); 38 C.F.R. § 3.303(b). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit, 5 Vet. App. at 93. A lay person is however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence maybe sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is required, however, to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn v. West, 12 Vet. App. 296 (1999). In determining whether the claim is well grounded, the evidence is generally presumed to be credible. See Arms v. West, 12 Vet. App. 188 (1999). If the veteran fails to submit evidence showing that his claim is well grounded, VA is under no duty to assist him in further development of the claim. See Schroeder v. West, 12 Vet. App. 184 (1999). VA may, however, dependent on the facts of the case, have a duty to notify him of the evidence needed to support his claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). The veteran has not reported the existence of any other records that, if obtained, would make his claim well-grounded. Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Board has no further duty, therefore, to notify him of the evidence to support his claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). III. Analysis A. Lumbar Spine Disorder The veteran has provided VAMC treatment records and private treatment records showing that he has a lumbar spine disorder. In addition, the service medical records show that on occasion the veteran received treatment for low back pain and strain. Therefore, the Board finds that the first and second Caluza elements have been satisfied because there is evidence of treatment for back problems in service and a current medical diagnosis of disability. Caluza, 7 Vet. App. at 506. The veteran has provided lay evidence indicating that he injured his back during service, and that his current back disorder is related to that injury. As a lay person the veteran is competent to provide evidence of an observable disorder, but he is not competent to provide evidence that requires medical expertise. Grottveit, 5 Vet. App. at 93; Savage, 10 Vet. App. at 497. His assertion therefore that the currently diagnosed disorder is related to his in-service symptoms is not probative. The veteran has not provided any probative evidence showing that the current back disorder is related to an in-service disease or injury. Wade v. West, 11 Vet. App. 302 (1998). On the contrary, the clinical evidence that comments on the etiology of back pathology incriminates post service trauma as the cause of current disability. For these reasons, the Board has determined that the claim of entitlement to service connection for a lumbar spine disorder is not well-grounded. B. Left Ankle Disorder The veteran has provided VAMC treatment records and private treatment records showing that he has a left ankle disorder. In addition, the service medical records show that from May 1971 to June 1971 and in November 1972 the veteran received treatment for a left ankle injury. Therefore, the Board finds that the first and second Caluza elements have been satisfied because there is evidence of treatment for left ankle problems in service and a current medical diagnosis of disability. Caluza, 7 Vet. App. at 506. The veteran has provided lay evidence indicating that his left ankle disorder began while he was in service. The veteran's claim rests on his assertions that his ankle problems are related to his period of active service. However, the appellant, as a lay person without medical knowledge is not competent to offer opinions or to make such conclusions regarding medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (holding that lay persons are not competent to offer medical opinions). Because the veteran has not submitted evidence of an etiological relationship between his left ankle disability and service, the Board finds that he has not met his initial burden of presenting evidence of a well-grounded claim. Although the medical evidence shows that the veteran currently has a left ankle disorder that had its onset approximately twenty years after service, that evidence does not suggest that the current disorder is related to an in- service disease or injury. There is no competent evidence establishing medical causation between the veteran's ankle problems and his period service, the appellant's claim is implausible and not well-grounded. There has been medical history recited by the veteran of ankle problems since service, but no medical provider has commented on the etiology of left ankle disability. The Court has held that bare transcription of lay history unenhanced by any additional medical comment by the examiner, is not competent medical evidence required to make the claim well grounded. LeShore v. Brown, 8 Vet. App. 406 (1995). Furthermore, there is no clinical evidence of chronic left ankle disability in service or continuity of symptomatology of left ankle problems from service to current findings of ankle pathology. The left ankle sprains responded to treatment and were not shown to be chronic. The calcifications about the distal tibia and fibula noted on x-rays in service were identified as residuals of old injuries, but were not identified as a disability in and of themselves. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(a). The Board recognizes that the Court has held that there is some duty to assist the veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1999) even where his claim appears to be not well- grounded where a veteran has identified the existence of evidence that could plausibly well-ground the claim. See generally, Beausoleil v. Brown, 8 Vet. App. 459 (1966); and Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in this context by Epps v. Brown, 9 Vet. App. 341, 344 (1966). The facts and circumstances of this case are such that no further action is warranted. ORDER 1. The claim of entitlement to service connection for a lumbar spine disorder is denied. 2. The claim of entitlement to service connection for a left ankle disorder is denied. _____________________________________ THOMAS J. DANNAHER Member, Board of Veterans' Appeals