BVA9504332 DOCKET NO. 92-56 513 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Whether a reopened claim of service connection for a seizure disorder can be presented. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his sister ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had eleven days of peacetime active service from December 9, 1975, to December 19, 1975. Service connection for a seizure disorder was denied by rating decisions in May 1986 and May 1987. The veteran did not appeal those determinations. This matter came before the Board on appeal from a February 1991 rating decision. VA hearings scheduled in September 1991 and October 1991 were rescheduled at the request of the veteran. He failed to report for a scheduled hearing in January 1992. The Board remanded the appeal to the RO for additional development in January 1993. The veteran and his sister were present for a requested hearing at the RO, before a member of the Board, in September 1993. The Board remanded the appeal to the RO for additional development in February 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that service connection should be established for a seizure disorder and a back disorder because they resulted from injuries received during his active service. 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 folders. 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, as a well-grounded claim of service connection for a seizure disorder has not been submitted, a reopened claim cannot be presented. The Board also finds that the preponderance of the evidence is against the claim of service connection for a back disorder. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. No competent evidence has been submitted to show that the veteran has a seizure disorder due to disease or injury in service. 3. The evidence is clear and unmistakable in showing that low back pain with spina bifida occulta of the first sacral vertebra existed prior to the veteran's active service. 4. The evidence is clear and unmistakable in showing that the preexisting low back condition was not aggravated by service as it is not shown to have increased in severity beyond natural progress. CONCLUSIONS OF LAW 1. As evidence of a well-grounded claim of service connection for a seizure disorder has not been submitted, a reopened claim cannot be presented. 38 U.S.C.A. §§ 1131, 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.303 (1993). 2. The legal presumption of soundness at service entrance is rebutted as to the veteran's low back pain with spina bifida occulta of the first sacral vertebra. 38 U.S.C.A. §§ 1131, 1137, 5107, 7104 (West 1991); 38 C.F.R. § 3.304 (1993). 3. The veteran's preexisting back disability was not aggravated by his peacetime service. 38 U.S.C.A. §§ 1131, 1153, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.306 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered in every claim presented by a qualified claimant is whether the claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). As stated by the United States Court of Veterans Appeals (Court): Section 5107(a) of title 38 unequivocally places an initial burden on a claimant to produce evidence that the claim is well grounded or, as we have held, is plausible. See 38 U.S.C.A. § 5107(a) (1991); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). This statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which--as well grounded--require adjudication. Grivois v. Brown, 6 Vet.App. 136, 139 (1994). Service connection may be granted for a disability which is shown to have been incurred in active service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. § 1137. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in severity during wartime service or peacetime service after December 31, 1946, unless the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Furthermore, when a disease was not initially manifested during service the appellant may establish the "required nexus" for service connection by evidence demonstrating a medical relationship between the current disability and the service. 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). Seizure Disorder The veteran's service medical records, including an examination for Medical Board purposes on December 15, 1975, are negative for evidence of a seizure disorder. The postservice medical records consist of VA outpatient treatment and hospital records from June 1977 through March 1993. The first postservice medical evidence of a seizure disorder is a report of treatment at a VA emergency room treatment on June 26, 1984. It was noted that the veteran had been found "unresponsive" on the floor by his family, had bitten his tongue and had been "drooling pink-tinged saliva in [an] apparent post- ictal state." It was reported that he had "never had a seizure before." Although the veteran denied drug use or a significant drinking history, a family member revealed that he was "a known drug and [alcohol] abuser," and was suspected of intravenous drug use. The examiner's assessment was "new onset seizures, etiol[ogy] undet[ermined]." Dilantin was prescribed. Subsequent medical records confirm the onset of seizures in June 1984 with numerous additional episodes, the earliest occurring in November 1984 and August 1985 due to noncompliance with prescribed medication regimens. A strong history of drug and alcohol abuse was also consistently recorded. During a September 1993 VA hearing, the veteran's sister asserted that the veteran had been seen by a Dr. Sides at Garrett County Memorial Hospital following his first seizure in "about the early part of 1976," and that Dr. Sides "started giving him some medication for the seizures" and referred him to the VA medical facility, where he had received all of his subsequent treatment. See page 15 of the transcript of the September 15, 1993 VA hearing. Although the RO, in response to the Board's February 1994 remand, made several attempts to obtain a medical release from the veteran in order to secure records of the alleged 1976 treatment at Garrett County Memorial Hospital, the veteran did not provide the requested material. Upon review of all the evidence the Board finds that, as opposed to the September 1993 testimony from the veteran's sister, the objective evidence indicates that the veteran received treatment for his first seizure, including anti-seizure medication, at a VA facility in June 1984, more than eight years after his separation from service. After carefully weighing this contrasting evidence, the Board finds that the contemporaneous medical evidence including the veteran's reported history given for the purposes of securing medical treatment, prove more accurate and credible than the statements based on memory many years after the facts. Furthermore, there is no medical evidence to support the assertion that the veteran's current seizure disorder is due to disease or injury in military service. In this regard, the Court has stated "that establishing 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 or some other manifestation of the disability during [service]." Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The unsupported lay assertions presented by the veteran and his sister concerning such questions of medical diagnosis or causation are not competent evidence for the purpose of presenting a plausible claim in this regard. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Accordingly, the veteran has failed to submit evidence of a well- grounded claim of service connection. See Grottveit, 5 Vet.App. at 92; Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). The Board recognizes that this matter has been presented for appellate review on the basis of whether new and material evidence had been submitted to reopen a claim of service connection for a seizure disorder. However, the Court has noted that "in contemplation of law, appellant's claim was not one on which relief could be granted; there was no claim to adjudicate on the merits and the [VA] erred in not initially denying the claim as one which was not well grounded." See Grottveit, 5 Vet.App. at 93. Thus, as lay assertions concerning questions of medical causation or diagnosis are not sufficient to establish a plausible or well-grounded claim, they also cannot serve as the basis for reopening a claim because they cannot constitute new and material evidence. In addition, the prior rating decisions must be considered to be nullities. Moray v. Brown, 5 Vet.App. 211, 214 (1993). In light of Court's directions in that decision, the Board refers these matters to the RO for appropriate action. Back Disorder The Board finds that the claim of service connection for a back disorder is well grounded because of the legal presumptions which arise in favor of the veteran in this case. In this regard, the Board has undertaken additional development to fully assist the veteran in connection with his claim. The record of the veteran's preentrance examination on December 5, 1975 is negative for reports or findings of a back disability. He was hospitalized on December 12, 1975, his third day of actual active duty, for observation and evaluation following complaints of back pain. During that hospitalization he disclosed a two-year history of back pain. The final diagnosis was low back pain with spina bifida occulta of the first sacral vertebra. The veteran was issued an honorable discharge approximately one week later on the basis of Medical Board findings that he had not been physically qualified for enlistment or induction because of a back disability which existed prior to his active duty and was not aggravated by such duty. The postservice medical records disclose that the veteran was treated at VA medical facilities following motor vehicle accidents in November 1977 and August 1980. While he received treatment for numerous injuries, there were no complaints or findings of back injuries or problems arising from either accident. The first postservice evidence concerning a back disability was the veteran's claim received in January 1991, asserting that he sustained a back injury during basic training in December 1975. The first postservice medical evidence of a back disability was noted during a March 1993 VA orthopedic examination, conducted in response to the Board's January 1993 remand. The report of that examination disclosed that the veteran was "a poor historian [who stated] that he was in a motor vehicle accident around 1977 and injured his lower back. He [could not] remember details of this accident [but] thinks he was treated at this VA facility.... He has no other known back injuries." The veteran's current complaints indicated that his "[b]ack 'goes out' two or three times per week." The examination revealed that he had normal posture and gait. Range of motion studies of the back disclosed backward extension to 35 degrees, lateral flexion to 30 degrees bilaterally, rotation to 30 degrees bilaterally, and that the veteran was able to touch his toes on forward flexion. X-ray studies were reported as disclosing a normal lumbar spine. The diagnosis was intermittent low back strain. During a VA hearing on September 15, 1993 the veteran's sister asserted that the veteran was seen shortly after his military service by a Dr. Sides at Garrett County Memorial Hospital for a back disability due to a fall during service. As previously noted, although the RO, in response to the Board's February 1994 remand, made several attempts to obtain a medical release from the veteran in order to secure records of his alleged treatment at Garrett County Memorial Hospital, the veteran did not provide the requested material. Upon review of the veteran's service medical records, the Board finds, given the history of back pain for two years, the actual nature of the findings exhibited shortly after entering service and the subsequent findings of the Medical Board which led to his discharge, that his diagnosed low back pain with spina bifida occulta of the first sacral vertebra unequivocally existed prior to service. Although the veteran and his sister have asserted that he sustained a back injury during service, the service medical records are negative for any evidence of such injury. Efforts to obtain competent evidence to support the current lay assertions have been unavailing because of the lack of cooperation on the part of the veteran. In addition, the aforementioned Medical Board found that the veteran's preexisting back disability was not aggravated during his active service. There has been submitted no medical evidence to support the assertion that he was treated for a back problem shortly after service or to establish that the preexisting condition underwent an increase in severity beyond natural progress in service. In fact, as noted, the earliest postservice medical evidence of a back disability was in March 1993, more than seventeen years after his separation from service, and there is no medical evidence which indicates any causal relationship to the veteran's military service. Accordingly, in the absence of evidence substantiating that the veteran's preexisting back disorder was aggravated during his eleven days of active peacetime service or that any current back disability is related to such service, the Board finds that the preponderance of the evidence is against the claim of service connection for a back disorder. Finally, since the negative evidence outweighs that which is positive on the merits of the issue, the veteran cannot be given the benefit of the doubt since no such doubt arises. ORDER As a well-grounded claim of service connection for a seizure disorder has not been submitted, a reopened claim cannot be presented. This portion of the appeal is dismissed. Service connection for a back disorder is denied. STEPHEN L. WILKINS 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.