Citation Nr: 0007770 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 97-23 900A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Patrick J. Edaburn, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active service from October 1968 to October 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The veteran appeared at a personal hearing before a Hearing Officer at the Phoenix, Arizona RO in December 1996. The veteran was scheduled for a personal hearing before a Member of this Board, to be held at the VA Central Office in Washington, D.C., in July 1999. However, that hearing was canceled at the veteran's request. In July 1999, the Board remanded this case so that the Reno, Nevada RO could determine whether new and material evidence had been submitted to reopen the veteran's claim. The Reno, Nevada RO re-opened the claim but continued the denial of service connection for a back disorder. As the veteran has been issued a supplemental statement of the case, and given the appropriate opportunity to respond thereto, this matter is now ready for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary to render an equitable disposition of this appeal has been obtained by the RO. 2. The veteran experienced an acute and transitory episode of lumbo-sacral strain in service, which resolved without apparent residuals by the time of his separation from service. 3. The veteran reports he first received post-service medical treatment for his back pain in 1979, some nine years after his separation from active military service. 4. No medical evidence has been submitted to show that the veteran's chronic lumbo-sacral pain with mild degenerative joint disease is causally related to his active service, including any back trauma in service. CONCLUSION OF LAW A well-grounded claim for service connection for a back disorder has not been submitted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303. The United States Court of Appeals for Veterans Claims (formerly called the United States Court of Veterans Appeals) has determined "that establishing service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and [service]." (emphasis added) Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under 38 U.S.C.A. § 5107(a), a veteran has an initial burden to produce evidence that a claim is well-grounded or plausible. See Grottveit v. Brown, 5 Vet. App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). Where an issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under section 5107(a). 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 a claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony, because lay persons are not considered competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well- grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well- grounded. Tirpak. The veteran asserts that he developed a chronic back disorder, characterized by nagging low back pain and muscle spasms, due to trauma he sustained to his back during his active military service. The veteran's service medical records show that no back problems were complained of or noted at the time of his service entrance examination. In June 1970, he presented with complaints of a six day history of a headache and backache. The impression was hyperventilation syndrome. In August 1970, he reported a two day history of low back pain following a strain. It was noted that there was slight para lumbar tenderness. The impression was lumbo-sacral strain. Two days later, the veteran reported that his back problem was improving. On physical examination, his back was found to be unremarkable. The report of the veteran's service separation examination noted no complaints or findings of any back problems. The claims file contains records of the veteran's treatment at the Clinton Valley Center, in Pontiac, Michigan, during the period from December 1971 to December 1972. In February 1972, it was noted that his musculoskeletal system had normal tonus and muscle strength, with no atrophy. The veteran's original claim, filed in March 1972, involved only a psychiatric disorder. He did not assert that he was having any back problems. The report of the veteran's April 1973 VA examination noted that he related an incident of ill treatment in service during which he, and other soldiers, were made to duck walk with their foot lockers resting on their knees. However, no complaints or findings of any back pain were noted during that examination. In January 1980, the veteran filed a claim for service connection for back problems which he asserted had been ongoing since 1968. He reported that another soldier had struck him, on the right side of his spine, with an M14. In April 1980, he submitted a statement in support of his claim, in which he reported that he had constant back pain and arthritis in his back, neck and spine. He stated that, while in service, he had been struck with an 18 inch long piece of ash wood. He further stated that he could only sleep about two to three hours per night, and awoke with back pain. In November 1983, the veteran again filed a claim for service connection for his back disorder, inter alia. He stated that, beginning in 1979, he had been treated by chiropractors for back pain. The report of the veteran's March 1984 VA examination noted that he presented with complaints of back aches. He reported that his superior officer had often struck him on the back with a wooden shovel handle during physical training, if he was not performing a drill properly. Straight leg raise testing was negative, bilaterally. There was normal range of motion of the lumbar spine, normal gait, and a normal heel to toe walk. No sensory or motor defects were noted, and the veteran was found to have normal reflexes. X-ray studies of the lumbo-sacral spine and pelvis showed some moderate T12 intervertebral cartilage with some irregularity of the inferior end plate of the T11 vertebra. No other abnormalities were observed. The diagnosis was chronic back pain. In May 1984, the veteran's claim for service connection for a back disorder was denied. The veteran was afforded another VA examination in April 1987. He complained of back problems. He stated he had not had any medical treatment since his last VA examination. On physical examination, his musculoskeletal system was found to be normal. The claims file contains a billing record from James W. Kennedy, D.C., a chiropractor in Whitehall, Michigan, dated in 1988. The record indicates that the veteran received a chiropractic adjustment, but does not indicate which type. The veteran received treatment from the Oceana County Community Mental Health Services, in Hart, Michigan, during the period from March 1976 through June 1989. In July 1988, he complained of chronic arthritis in his back, and stated he had been disabled since 1970. In January 1989, he reported a history of back problems which made heavy lifting difficult for him. He stated he took Motrin for back pain. The claims file contains a form authorizing release of information from Raymond Tracy, D.O, of Hart, Michigan. On the form, the veteran indicated that Dr. Tracy treated him for his back. However, the Board notes that on another document in the claims file, the veteran indicated that Dr. Tracy treated him for a "breakdown." The claims file contains a billing record, dated in January 1989, from Dr. Tracy. However, it does not make any reference to the veteran's back disorder. The claims file also contains records of the veteran's treatment at the Westwood and Northwood Centers of the Hackley Hospital, in Muskegon, Michigan, during the period from April 1992 through July 1994. In June 1992, it was noted that the veteran had no known acute physical problems. In October 1992, the veteran wrote a letter to the President of the United States, which was ultimately forwarded to the VA. In his letter, the veteran stated that while in service he was struck with an M14 in January 1969 at Camp Pendleton. The M14's bolt lever reportedly penetrated his back at the rear of his right hip. He stated he went to sick bay and a patch was placed on his back. The Hackley Hospital records show that, in July 1994, he appeared healthy and in no apparent distress. His Axis III diagnosis included a listing for unspecified "chronic pain- type problems". The report of the veteran's December 1995 VA examination noted that he complained of continuous problems with back spasms ever since he was hit by an M14 in 1969, and was made to duck walk with a foot locker on his knees in service. He stated he had never been given physical therapy for his back problem. He further stated that he took Motrin 600 mg up to three times a day for his chronic, nagging back pain and degenerative arthritis. It was noted that he had a surgical scar on his right back. The lumbar spine had full range of motion. There was increased muscle tone at the paraspinous musculature and lumbar spine. Positive spinous process tenderness to percussion was noted throughout the spine. X- ray studies of the lumbo-sacral spine showed mild multi-level degenerative joint disease with some anterior osteophyte formation. The impression was chronic lumbo-sacral pain. The report of the veteran's January 1996 VA examination noted that he complained of a history of lumbo-sacral strain. The Axis III diagnosis was back problems. In July 1996, the veteran's claim for service connection for a back disorder was again denied. He filed a notice of disagreement and appealed from that decision. The veteran appeared at a personal hearing before a Hearing Officer at the RO in December 1996. He testified that he had a 12 to 14 inch long scar on his back from having been hit with a shovel handle by his drill instructor during training. He reported that he still had muscle spasms in his lower back, just as he did in service. He stated that after his separation from service he had been treated by chiropractors, including Dr. Kennedy. He further stated that he had been given a magnetic resonance imaging (MRI) test at the VA Medical Center in Tucson, Arizona, about two months prior to the hearing, which revealed herniated disks. The veteran was scheduled for a personal hearing before a Member of this Board, sitting at the VA Central Office in Washington, D.C., in July 1999. However, that hearing was canceled at the veteran's request. Upon consideration of all the evidence of record, the Board finds that the veteran has failed to carry his burden of presenting sufficient evidence to justify a belief by a fair and impartial individual that he has submitted a well- grounded claim for service connection for a back disorder. The veteran asserts that his current back disorder is causally related to back trauma he sustained during his active service. However, while he is certainly capable of providing evidence of symptomatology, as a layperson he is not considered legally capable of opining on matters requiring medical knowledge, such as the degree of disability produced by the symptoms or the condition causing the symptoms. See Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Espiritu, 2 Vet. App. at 494 (1992). See also Harvey v. Brown, 6 Vet. App. 390, 393-94 (1994). The available medical evidence shows that at the time of his separation from active service the veteran did not have a chronic back disorder. He has reported receiving medical treatment for his back pain beginning in 1979, some nine years after his separation from service. The first medical evidence of a chronic back problem contained in the claims file dates from March 1984. The Board notes that the veteran reported, in his December 1996 personal hearing, that herniated disks had been diagnosed in approximately October 1996. Such a diagnosis, even if correct, would not show that his current back disorder is causally related to his active military service, as no symptoms of intervertebral disk problems were ever noted in the intervening years. The Board finds that no medical evidence has been presented to show that the veteran's current back problems are due to any back trauma, or disease, he may have suffered during his active service. Thus, the veteran has not submitted any medical opinion or other medical evidence which supports his claim. Therefore, the claim may not be considered well- grounded. 38 U.S.C.A. § 5107(a). Since the claim is not well-grounded, it must be denied. See Edenfield v. Brown, 8 Vet. App. 384, 390; (1995). As the foregoing explains the need for competent medical evidence linking the veteran's current back disorder to his active military service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disability. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER As a well-grounded claim for service connection for a back disorder has not been submitted, the appeal is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals