Citation Nr: 0002421 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 97-20 519A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES Entitlement to service connection for chemical sensitivity, allergic asthma, allergic rhinitis, temporomandibular joint syndrome, and mechanical low back pain during active duty for training from April 29, 1970 to September 7, 1970. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The appellant served as a member of the United States Army Reserves during which he had active duty for training from April 29, 1970 to September 7, 1970 and from June 3, 1973 to June 6, 1973. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In statements dated in June 1995 and May 1996, the appellant asserted claims for service connection for chronic fatigue syndrome and peptic ulcer disease. The Board notes that these matters have not been developed or adjudicated by the RO and are referred thereto for appropriate action. FINDING OF FACT Service connection for chemical sensitivity, allergic asthma, allergic rhinitis, temporomandibular joint syndrome, and mechanical low back pain during active duty for training from April 29, 1970 to September 7, 1970, is not plausible. CONCLUSION OF LAW The claims for service connection for chemical sensitivity, allergic asthma, allergic rhinitis, temporomandibular joint syndrome, and mechanical low back pain during active duty for training from April 29, 1970 to September 7, 1970, are not well grounded. 38 U.S.C.A § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered with respect to this appeal is whether the appellant has presented evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is a claim that is plausible, that is, one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the appeal must fail with respect to it, and there is no duty to assist the appellant further in the development of facts pertinent to the claim. Id., 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The initial burden is on the claimant to produce evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a); see Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 610-11. Where a 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 at 92-93. Further, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or an injury in service (lay or medical evidence), and medical evidence of a nexus between the inservice injury or disease and a current disability. Epps. v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam), Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The term active service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 1991 & Supp. 1999); 38 C.F.R. § 3.6; Paulson v. Brown, 7 Vet. App. 466 (1995); Brooks v. Brown, 5 Vet. App. 484 (1993); VAOPGCPREC 86-90-1990. It appears that not all of the appellant's National Guard records are available. Of record are the report of an entrance examination dated in February 1970 and a periodic examination dated in January 1974. Where service medical records are missing, VA's duty to assist the claimant, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991); and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Court has further held that "[n]owhere do VA regulations provide that a claimant must establish service connection through medical records alone." Stozek v. Brown, 4 Vet. App. 457, 461 (1993), quoting Cartright v. Derwinski, 2 Vet. App. 24, 25-26 (1991). In this matter, the appellant asserts that he developed the disabilities that appear on the cover page of this decision during active duty for training from April 29 to September 7, 1970. Specifically, the appellant indicated in the application for compensation and pension received in June 1995 that he developed back pain in July and August 1970 and experienced severe asthma, allergies, and chemical sensitivity, and mandibular joint dysfunction in August 1970. As indicated above, the majority of the claimant's active duty medical records are not available. The medical evidence of record is the report of an entrance examination dated in February 1970 and of a periodic examination dated in January 1974. These records are negative for complaints, treatment, or diagnoses pertaining the disabilities on appeal. With respect the asthma issue, the appellant has submitted private medical statements dated in 1975 and a letter written by himself dated in January 1976. The medical statements provide that the appellant was being treated for asthma and that military related exercises and activities exacerbated the condition. The appellant asserts that the January 1976 letter was written to the Illinois Adjutant General. Therein, the appellant indicated that he developed asthma prior to service, that while serving in 1975 his condition increased in severity and that the disability had become worse within the last year. While this evidence establishes that the appellant has asthma, it does not demonstrate that the disability was incurred in or aggravated during the appellant's active duty for training in August 1970. Moreover, there is no competent medical opinion relating the disability to active duty for training during the asserted time period. Therefore, the Board concludes that the claim is not well grounded. Epps. v. Gober at 1468; Caluza v. Brown at 506; Grottveit v. Brown at 93. Likewise, post service medical records establish current diagnoses for chronic mechanical low back pain, allergic rhinitis, and temporomandibular joint syndrome. The Board has considered the appellant's representations that he developed these disabilities during active duty training from April 29, 1970 to September 7, 1970. However, the medical evidence of record does not show that the appellant incurred those disorders during the aforenoted period. Moreover, there is no competent medical evidence relating such disorders to the appellant's first period of active duty for training. Accordingly, the Board must find that the claims for service connection for chronic mechanical low back pain, allergic rhinitis, and temporomandibular joint syndrome are not capable of substantiation. Id. With respect to the claim for chemical sensitivity, the Board notes that the record does not include a diagnosis for a disability associated with such. Therefore, the appellant's claim fails. Brammer v. Derwinski, at 225. The Board recognizes the appellant's contentions and the November 1996 statement of one the appellant's friend regarding the decline in the appellant's health subsequent to his active duty for training. The claimant and his associate may speak to the symptoms that the appellant experienced. However, as lay persons, they are not qualified to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, their personal beliefs that a relationship exists between the appellant's claimed disabilities and his military service cannot serve to prove that the disabilities for which the appellant claims service connection was incurred in or aggravated by service. The Board views its discussion as sufficient to inform the appellant of the elements necessary to complete his application for the claims of service connection as noted above. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER Service connection for chemical sensitivity, allergic asthma, allergic rhinitis, temporomandibular joint syndrome, and mechanical low back pain during active duty training from April 29 to September 7, 1970, is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals