BVA9502165 DOCKET NO. 93-08 974 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony D. Dokurno, Associate Counsel INTRODUCTION The veteran performed active military service from September 1964 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a neck disability ("wry neck"). CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the veteran sustained a "wry neck" condition after a fall in service. They also contend that this injury has resulted in disabling changes to his neck, including pain, lessened mobility, and occasional headaches, which persist to the present day. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for entitlement to service connection for a neck disability is not well-grounded. FINDING OF FACT The veteran has not presented competent medical opinion or other supporting evidence sufficient to establish that he has a current neck disability attributable his active service. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim for entitlement to service connection for a neck disability. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold inquiry in all cases is whether the veteran's claim is well-grounded. Under the provisions of 38 U.S.C.A. § 5107 (West 1991), a person who submits a claim to the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. If the person meets this burden, the VA is obligated to assist in developing facts pertinent to the claim. A well-grounded claim is one that is plausible, that is, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than a mere allegation. The claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well- grounded claim. See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. King v. Brown, 5 Vet.App. 19 (1993); Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Any adjudication on the merits of a claim that is not well-grounded constitutes error. Grivois v. Brown, 6 Vet.App. 136 (1994). A January 30, 1965 service medical record entry notes that the veteran reported to the medical clinic complaining of a painful left neck area. The service medical record contains a February 1965 radiographic report which states, "Multiple views of the cervical spine demonstrate a scoliosis of the upper cervical spine to the (left) at the C3 - C4 segments. No fractures or subluxation demonstrated." A February 1965 orthopedic clinical record cover sheet recounts the veteran's contention that he had fallen on his left shoulder and felt resulting pain in the left side of his neck, and records his two-day inpatient treatment. The clinical history noted tenderness to the left neck at C5 - C6, with no obvious spasms. Progress Notes dated February 1, 1965 indicate that the veteran's condition was "(m)arkedly improved with cervical traction." The veteran's Chronological Record of Medical Care entry of February 10, 1965 states, "Wry neck symptoms have completely resolved. (Physical examination within normal limits.) Return (as necessary)." There are no additional service medical record entries in the veteran's claims file indicating complaints or abnormal findings regarding the neck, although there are entries referring to other conditions not pertinent to this claim. The service medical record contains other indications that the veteran's condition was acute and transitory. A July 1966 entry states that the veteran was physically qualified for isolated or remote duty assignments. A December 1967 entry is checked to indicate that the veteran "requires no duty restrictions." Record of the veteran's induction and separation physical examinations, and a post-active service Certificate of Physical Fitness, also do not indicate any neck pain or treatment. His September 1964 enlistment examination is normal in all pertinent respects. His August 1968 separation examination, however, has record of several prior physical complaints (including left wrist pain, dizzy spells, sinusitis, shortness of breath, and chest pain, among others), but neither mentions neck pain nor recounts the veteran's in-service hospitalization for the neck injury. Specifically, the examiner noted, "Examinee denies all other pertinent medical and surgical history." In January 1970 the veteran signed a reservist's Certificate of Physical Fitness which is checked to indicate that to the best of his knowledge the veteran believed he had no medical defect or disability that would disqualify him from full military duty. The veteran and his representative have also submitted letters from a private chiropractor, who indicated he has seen the veteran several times a year since 1986. The practitioner wrote in his February and April 1992 letters that the veteran's complaints were of cervical pain at the C2, C5, and C6 levels, lumbar pain at L4 - L5, and sacral pain at S1. The practitioner noted the veteran's complaints of neck limitation of motion with muscle hypertonicity, neck stiffness, and headaches. According to the claims file, the veteran was briefly hospitalized in March 1992 at a VA Medical Center (VAMC) for treatment of an inguinal hernia. His VAMC Abbreviated Medical Record dated March 11, 1992 makes no mention of a neck condition. While the entries in the service medical records and the appellant's recollections have been thoroughly considered, ultimately, this case is controlled by the governing statutory and regulatory provisions and the decisions of the United States Court of Veterans Appeals (Court). Although the veteran has asserted that his current neck condition is related to his injury in service, a February 1965 medical entry states that the veteran's neck symptomatology had completely resolved. He was seen for various medical complaints during the remainder of his active service and was accorded an August 1968 separation examination, but he made no complaint about his neck at any time. According to the record, the first indication of any post-service neck problem was 1986, a time many years following service discharge, when the veteran visited a chiropractor. That chiropractor has not rendered an opinion regarding the etiology of the veteran's neck problem. The veteran has therefore submitted no medical evidence establishing a causal relationship between an injury in service and his current condition. The Court has held that a lay party is not competent to provide probative evidence on matters requiring expertise derived from specialized medical education and training. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Moreover, the Court has held that, where the determinative issue involves medical causation or diagnosis, there must be competent medical evidence supporting a claim to make it "plausible" and thus well-grounded. Grottveit, 5 Vet.App at 93. Accordingly, the veteran is not competent to make a diagnosis of any disability and render an opinion regarding its relationship to his active service. This record contains no competent medical evidence linking any current disability with service. In the absence of such evidence, the claim is not well- grounded. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Finally, the Board notes that under the case law of the Court, by dismissing this claim as not well-grounded, the Board does not burden the veteran with a prior, final adjudication on the merits. Thus, if the veteran is able to submit a well-grounded claim in the future, he will not be confronted with the need to surmount the higher hurdle of providing new and material evidence sufficient to reopen a claim after final adjudication. 38 U.S.C.A. §§ 5108, 7104(b); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). ORDER The claim of entitlement to service connection for a neck condition is dismissed. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.