Citation Nr: 0000159 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 94-37 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a back disorder, to include scoliosis of the spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from January 1984 to April 1984 and from September 1984 to May 1990. In an August 1996 decision, the Board of Veterans' Appeals (Board) remanded the issue of entitlement to service connection for a back disorder, to include scoliosis of the spine, to the Department of Veterans Affairs (VA) Seattle, Washington Regional Office (RO) for additional development of the record. A review of the record reflects that the requested development has been completed. Thus, the case has now been returned to the Board for appellate consideration. The Board notes that a detailed history of the veteran's claims and their respective procedural posture was set forth at length in the Board's August 1996 decision and thus will not be repeated in this decision. Finally, the Board notes that in July 1997 the veteran, through her representative, requested a personal hearing before a local hearing officer. The record reflects that the veteran failed to appear at her September 1997 hearing and has not requested that it be rescheduled. Thus, the claim is properly before the Board for appellate consideration. FINDING OF FACT Competent medical evidence of a nexus between a current back disorder, to include scoliosis of the spine, and an incident of service, has not been presented. CONCLUSION OF LAW The claim of entitlement to service connection for a back disorder, to include scoliosis of the spine, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service medical records reflect that upon enlistment examinations dated in August 1983 and in June 1984, the veteran's systems were clinically evaluated as normal. Upon periodic examination dated in September 1985, the veteran's systems were clinically evaluated as normal with the exception of moderate airway obstruction. A December 1985 clinical record reflects a notation of scoliosis. The veteran was treated for low back pain in February 1986 following a motor vehicle accident, and an assessment of resolving low back pain was noted. A radiology report dated in February 1986 noted double curve scoliosis. Mild scoliosis was also noted in an April 1990 radiology report. Upon separation examination dated in May 1990, scoliosis was noted. Private treatment records dated from January 1987 to May 1987 are silent for complaints relevant to the back. Private chiropractic records dated from November 1990 to March 1992 reflect complaints and treatment related to middle and low back pain. A December 1990 record notes that the veteran made favorable progress under chiropractic care. At a March 1993 RO hearing, the veteran testified that in or around January 1990 she fell while exiting a C-5 airplane and caught her arm in a ladder. (Transcript, page 5). The veteran stated that she sought treatment from a chiropractor after her discharge from service and that she still suffered from aching and severe pain in her back. (Transcript, pages 6, 12). The veteran also testified that she injured her back in a motor vehicle accident while in the service and suffered from severe muscle spasm at the time. (Transcript, page 7). The veteran stated that her chiropractor felt that the jerking of her arm when she fell from the plane "messed up" her spine and irritated her back. (Transcript, page 11). The veteran testified that she was not currently under treatment. (Transcript, page 12). Upon VA examination of the hips dated in May 1993, the veteran complained of daily pain in the lower dorsal spine. The examiner noted no muscle spasm or tenderness of either the trapezius or the paravertebral muscles extending down to the lower dorsal spine. The examiner also noted seemingly full range of motion in the lumbar spine. A relevant diagnosis of fibromyositis involving the trapezius muscles bilaterally and extending probably onto the paravertebral muscles and the rhomboideus, without trigger points, was noted. In an August 1996 decision, the Board remanded the issue of entitlement to service connection for a back disorder, to include scoliosis of the spine, to the RO for additional development of the record. Upon VA examination of the spine dated in November 1996, the veteran reported that she was unaware that she had scoliosis prior to entering military service. The examiner noted that the veteran's claims folder had been reviewed, and that the veteran had reported two accidents during military service, falling while exiting a plane and a motor vehicle accident. It was noted that the veteran was not currently receiving treatment and had not received any for the past five years. Relevant complaints of mid back pain and a pinching sensation in that area of the back were noted. The examiner noted the veteran could easily walk on her toes and heels. Tandem gait was also noted as normal. Unrestricted cervical and lumbar motion was noted by the examiner. Neurologic examination was normal. Scoliosis examination revealed mild asymmetry indicative of a thoracolumbar levo-scoliosis. The examiner noted that a x-ray report from Madigan hospital was reviewed. The x-ray report revealed mild anterior wedging of the mid-thoracic curve in comparison with earlier films dated in December 1985. A diagnosis of thoracolumbar scoliosis was noted. The examiner opined that the veteran had an idiopathic thoracolumbar scoliosis that was a developmental condition primarily of females. It was noted that there was no indication of a congenital scoliotic deformity. The examiner noted that new x-rays were not ordered because no answers could be addressed by obtaining them. The examiner opined that the veteran's thoracolumbar scoliosis predated her entry into the service; it was mild and probably not recognized. The examiner also opined that the veteran had no injuries in service that produced the scoliosis. Finally, the examiner opined that there was no indication in the claims folder or medical record, including x-rays, to suggest that there was an increase in pathology either from the motor vehicle accident or the fall. The examiner qualified his opinion by noting that there were no x-rays to review of that time period, which would assist him in documenting any radiologic changes. Upon VA examination dated in July 1999, the examiner noted that the claims folder had been reviewed. The veteran reported that her neck and lower back hurt. It was noted that the veteran worked forty hours per week as a forklift driver and had no restrictions at work. Upon physical examination, the examiner noted that the veteran did have mild asymmetry due to her idiopathic or developmental scoliosis. The examiner noted that this scoliosis was not post-traumatic, but was of the idiopathic type. Shoulder asymmetry was also noted. The veteran reported no cervical, dorsal, or lumbar tenderness to palpation. The examiner noted no hypertonicity or spasm. Sensation was noted as intact to light touch, pinprick, vibration, and temperature. A diagnosis of mild idiopathic scoliosis, developmental and not related to injury, and an otherwise unremarkable musculoskeletal examination was noted. The examiner noted that the opinions expressed in the November 1996 examination report remained unchanged. Pertinent Law and Regulations Basic entitlement to disability compensation may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as hypertension, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In the alternative, service connection may be established by a continuity of symptomatology between a current disorder and service. 38 C.F.R. § 3.303(d); Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Lay observations of symptomatology are pertinent to the development of a claim of service connection if corroborated by medical evidence. See Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). The veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto. 38 U.S.C.A. § 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999). Congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (1999). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service-connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability; lay or medical evidence of incurrence or aggravation of a disease or injury in service; and competent medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). A claim based on chronicity may be well grounded if the chronic condition is observed during service, continuity of symptomatology is demonstrated thereafter and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Lay assertions of medical causation cannot constitute evidence sufficient to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Analysis Following a thorough review of the evidence of record, the Board concludes that entitlement to service connection for a back disorder, to include scoliosis of the spine, is not warranted. Initially, the Board notes that neither a back condition nor scoliosis of the spine was noted upon the veteran's enlistment examinations prior to military service. The dispositive question therefore is whether "clear and unmistakable evidence" exists that the disability existed prior to service, thus overcoming the statutory presumption of soundness as set forth above. See Junstrom v. Brown, 6 Vet. App. 264, 266 (1994). In Miller v. West, 11 Vet. App. 345 (1998), it was held that a physician's "bare conclusion" that a disability preexisted service, without a factual predicate in the record, did not constitute clear and unmistakable evidence to rebut the statutory presumption of soundness. Miller, 11 Vet. App. at 348. The Board notes that there are no clinical records in this case reflecting that the veteran's back disorder, including scoliosis of the spine, preexisted her military service, and the only evidence to that effect is the opinion of the November 1996 VA examiner. Thus, in light of the absence of clinical records reflecting otherwise and the Court's decision in Miller, there is no basis of record to find that the veteran's back disorder, to include scoliosis of the spine, existed prior to service. Therefore, the Board finds as a preliminary matter that the presumption of soundness has not been overcome. The Board must therefore determine whether the veteran's back disorder, to include scoliosis of the spine, was incurred as a result of some incident of her military service. Although the record reflects that the veteran was treated for back pain in service and scoliosis and lumbar strain were noted, the record is silent for competent medical evidence of a nexus between any current back disorder, including scoliosis, and an incident of service. The November 1996 VA examiner opined that the veteran's scoliosis was not produced by any accident in service, and that there was no indication of an increase in pathology as a result of the motor vehicle accident or fall. The July 1999 VA examiner noted that the veteran's scoliosis was developmental, not related to injury and that the opinions expressed in the November 1996 examination report remained unchanged. The Board recognizes that the veteran testified that her chiropractor told her that the fall from the C-5 airplane "messed up" her spine and irritated her back; however, that testimony is not supported by any medical evidence of record. As stated by the Court, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has made it clear that a lay party is not competent to provide probative evidence as to matters requiring expertise regarding specialized medical knowledge, skill, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1994). Consequently, the veteran's lay assertion that her back condition, including scoliosis, was caused by her active service is neither competent nor probative of the issue in question. While the veteran is competent to testify regarding the events that are alleged to have occurred during her active service, she is not competent to diagnose the etiology of her own back condition. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93-95 (1993); and Clarkson v. Brown, 4 Vet. App. 565, 657 (1993). The Board also notes that the record is silent for evidence of treatment for back pain since March 1992. Additionally, the November 1996 VA examination report notes that the veteran was not currently receiving any treatment and had not received treatment for the past five years. Although the veteran has reported daily pain in her back, those assertions are not supported by the objective evidence. The Board finds that the veteran has therefore not demonstrated the presence of a chronic disorder in service or evidence of continuity of symptoms that would warrant further development under 38 C.F.R. § 3.303(b) (1999). See Savage v. Gober, 10 Vet. App. 488 (1997). Thus, in the absence of competent medical evidence of a nexus between the veteran's back disorder, to include scoliosis of the spine, and an incident of service, the claim is not well grounded and must be denied. The Board notes that in a November 1999 written argument, the veteran's representative maintained that a remand was required for complete compliance with the directives of the Board's August 1996 remand. However, after reviewing the examination reports, the Board finds that the directives of the August 1996 remand were sufficiently completed. Additionally, the Board notes that this claim was remanded in August 1996 for additional development deemed necessary at that time to fulfill VA's duty to assist the veteran under 38 U.S.C.A. § 5107(a). The Board also notes that the Court's decision in Stegall v. West, 11 Vet. App. 268 (1998), held that a remand in an appeal involving a well-grounded claim created the right to compliance with the remand order. Despite the fact that the Board previously remanded this claim, the law is well established that VA has no duty to assist a claimant under 38 U.S.C.A. § 5107(a) unless and until she has presented a well-grounded claim. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. Brown, 12 Vet. App. 477 (1999). In light of the Board's conclusion herein that this claim is not well grounded, no duty to assist the veteran exists at this time. Accordingly, any failure by the RO to obtain x-rays or all of the opinions requested in the Board's August 1996 remand does not require further action prior to the Board's issuance of this decision. ORDER Entitlement to service connection for a back disorder, to include scoliosis of the spine, is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals