Citation Nr: 0006136 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 94-20 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right ear disability. 2. Entitlement to service connection for a skin disability. 3. Whether new and material evidence has been submitted to reopen a claim of service connection for a back disability. 4. Whether new and material evidence has been submitted to reopen a claim of service connection for a neck disability. 5. Whether new and material evidence has been submitted to reopen a claim of service connection for a shoulder disability. 6. Entitlement to benefits under 38 C.F.R. § 1151 for a back disability caused or aggravated by a myelogram performed at a VA Medical Center in 1966. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from August 1944 to June 1946. This matter comes to the Board of Veterans' Appeals (Board) following a February 1992 decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). This matter also comes before the Board following a September 1996 RO decision that denied the veteran's claim for compensation benefits under 38 C.F.R. § 1151. The Board remanded the veteran's appeal on two earlier occasions - December 1996 and December 1998 for further development. FINDINGS OF FACT 1. In February 1992, the RO denied service connection for a right ear disability and a skin disability, as well as applications to reopen claims of service connection for a back disability, a neck disability, and a shoulder disability. Notice of these denials was sent to the veteran on March 4, 1992. 2. A notice of disagreement with the February 1992 denial was received from the veteran on June 17, 1992. 3. A statement of the case that addressed the claims of service connection for a right ear disability and a skin disability as well as applications to reopen claims of service connection for a back disability, a neck disability, and a shoulder disability was mailed by the RO to the veteran on September 4, 1992. 4. No timely Substantive Appeal was received by the RO as to the February 1992 action. 5. No competent medical evidence has been submitted which tends to show that the veteran currently suffers from a back disability caused or aggravated by a myelogram performed at a VA Medical Center in 1966. CONCLUSIONS OF LAW 1. The veteran is statutorily barred from appealing a February 1992 rating decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302(b), 20.303 (1999); 38 C.F.R. §§ 19.129, 19.192 (1991). 2. The veteran's claim for benefits under 38 U.S.C.A. § 1151 for a back disability caused or aggravated by a myelogram performed at a VA Medical Center in 1966 is not well grounded. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS February 1992 Denial An appeal to the Board "consists of a timely filed Notice of Disagreement (NOD) in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal." 38 C.F.R. § 20.200 (emphasis added). The Substantive Appeal can be set forth on a VA Form 9 (Appeal to the Board of Veterans' Appeals) or on correspondence specifically identifying the issues appealed and setting out specific arguments relating to errors of fact or law made by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.202. To be considered timely, the Substantive Appeal must be filed within 60 days from the date that the AOJ mails the SOC to the appellant or within the remainder of the one- year period from the date of mailing of the notification of the determination being appealed. 38 C.F.R. § 20.302(b); 38 C.F.R. §§ 19.129, 19.192 (1991). Additionally, VA regulations provide that the period for filing a Substantive Appeal may be extended for good cause. 38 C.F.R. § 20.303. The request for such an extension must be in writing and must be made prior to the expiration of the time limit for filing which would otherwise apply. Id. There are also situations where, when additional pertinent evidence is received during the time allowed for perfecting an appeal, VA must afford the claimant at least 60 days from the mailing date of a supplemental statement of the case (SSOC) to perfect an appeal, even if the additional 60-day period would extend the expiration of the original appeal period. VAOPGCPREC 9-97 (Feb. 11, 1997). If the claimant fails to file a Substantive Appeal in a timely manner, and fails to timely request an extension of time, "he is statutorily barred from appealing the RO decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993). Cf. Rowell v. Principi, 4 Vet. App. 9 (1993). In the present case, the Board finds that the veteran did not timely file a Substantive Appeal of the 1992 decision. He was not granted an extension of time to file a Substantive Appeal, and no additional pertinent evidence was received during the time allowed for perfecting an appeal which would have extended the time for filing a Substantive Appeal. Specifically, the record shows that the RO denied service connection for a right ear disability and a skin disability, as well as applications to reopen claims of service connection for a back disability, a neck disability, and a shoulder disability in February 1992. Notice of this action was sent to the veteran on March 4, 1992. The veteran thereafter filed a timely NOD on June 17, 1992. A SOC was issued on September 4, 1992. Thereafter, no timely Substantive Appeal was received. The veteran filed a VA Form 9 on May 27, 1993. However, this presentation was received by the RO more than two months after the March 4, 1993, statutory deadline had run. 38 U.S.C.A. § 7105(d)(3) (West 1991). Similarly, while both the veteran and his representative subsequently filed other presentations with the RO, which included allegations of error regarding the February 1992 decision, and the veteran and his wife testified at personal hearings in June 1993, September 1997, and June 1998, these presentations were submitted well after the time period for filing a Substantive Appeal had passed. See Tomlin v. Brown, 5 Vet. App. 355 (1993); 38 C.F.R. §§ 20.302(c), 20.305 (1999). Consequently, the Board finds that, absent a timely filed Substantive Appeal, the veteran is statutorily barred from appealing the February 1992 denial of service connection for a right ear disability and a skin disability, as well as the denial of applications to reopen claims of service connection for a back disability, a neck disability, and a shoulder disability. The Board does not have jurisdiction to consider an appeal from this decision. 38 C.F.R. § 20.200; Roy, supra. Section 1151 Claim The veteran and his representative assert that the veteran's chronic back pain was caused by a myelogram performed at the Durham VA medical center in 1966. It is requested that the veteran be afforded the benefit of the doubt. Private treatment records, dated from November 1941 to January 1992, VA treatment records, dated from April 1969 to August 1991, and a June 1996 VA examination report were obtained by the RO. Initially, the Board notes that private treatment records prepared prior to a 1966 myelogram show the veteran's periodic complaints, diagnoses, and/or treatment for back pain. See private treatment records dated in January 1948, April 1948, April 1950, and October 1955. A November 1966 private treatment record shows that a report from the Durham VA medical center (VAMC) had been received. It was noted that the report showed that the veteran had been hospitalized from August 22, 1966, to September 21, 1966. It was also observed that VA's chief findings at that were: [a]trophy of the left upper extremities . . . Cervical x-rays revealed a degeneration of C5-C6 interspace but they were unable to prove he had a disc disease. They were of the opinion he had a left acromioclavicular joint arthritis cervical spondylosis & chronic alcholism [sic] and injected the joint with Xylocaine with relief, at least temporary. The treatment records also include hospitalization records from a period of VA hospitalization, dated from April 1969 to October 1969. Specifically, an April 1969 examination shows that the veteran, two years earlier, had been treated at the Durham VAMC for a cervical disc injury accompanied by radiating pain from his neck into his left shoulder. However, notwithstanding these earlier problems, examination of the head and neck disclosed no significant findings except for point tenderness at C2 and C3. While hospitalized, the veteran underwent a neurologic examination in May 1969 because of complaints of blind spells and severe frontal headaches. The examination revealed no abnormality except atypical migraine headaches. May 1969 mastoid x-rays revealed "some opaque oil in the ventricles apparently [at] the base of the skull, from previous myelogram." Moreover, they revealed poor pneumatization of both sides of the mastoids, probably associated with some old chronic infection. Similarly, May 1969 skull x-rays, taken because of complaints of blind spells and severe frontal headaches, revealed ". . . multiple droplets of opaque oil scattered throughout the ventricular system at the base of the skull, mostly anteriorly, that [were] apparently due to a previous myelogram." It was opined that there were no unusual intracranial calcifications or other changes. An August 1969 interim report noted the veteran's complaints of severe back pain. It was reported that physical therapy had produced some improvement in back strength. Moreover, x- ray examinations continued to show contrast media in the subarachnoid space from a previous myelogram done at VA Durham, North Carolina during 1966. Furthermore, it was reported that the veteran had . . . fixated on the myelogram performed in 1966 in Durham and believes that the remaining droplets of contrast media within his brain and spinal cord are responsible for the physical discomfort he allegedly is experiencing. Through it all there runs a mild depression from suspiciousness of hospitals, doctors, clinics, and a persistent fear that he will be hurt by the hospital . . . The diagnoses included lumbosacral strain. The October 1969 discharge report once again noted that x- rays reveled multiple droplets of opaque oil scattered throughout the ventricular system at the base of the skull from a previous myelogram done at VA Durham, North Carolina during 1966 and his diagnoses continued to include migraine equivalents and lumbosacral strain. Next, treatment records showed the veteran's complaints, diagnoses, and/or treatment for low back pain with questionable radiation into lower extremities and weakness. See VA treatment records dated in July 1970 and private treatment records dated in February 1991, March 1991, and December 1991. The diagnoses included muscle strain. The July 1970 VA treatment record also shows that the veteran's history included his having had a myelogram in 1966 due to shoulder and neck pain, followed by an injection into his neck. However, while he had done well since that time, he had also noted back pain that, more recently, had been radiating. The March 1991 private treatment record shows that the veteran was referred for evaluation of his magnetic resonance imaging (MRI) and back pain. Next, it was reported that the veteran complained of back trouble since a 1964 myelogram at the Durham VAMC. It was reported that the MRI revealed degenerative changes between "4-5 and 5-1" and some posterior changes. (Specifically, the Board notes that the impression from the actual February 1991 MRI report was degenerative changes of the lumbar spine, particularly facet joint degeneration, spondylolysis of L-3 on L4, and acquired spinal stenosis at that level.) It was also reported that the veteran had no neurological deficits. The veteran underwent a VA examination in June 1996. At that time, the veteran reported that he had experienced low back pain since a myelogram in 1966. However, he had not had any radiating discomfort to his lower or upper extremities. He also complained that, over the previous year, he had developed radiating pain and paresthesia along the left hip and left lateral leg, but he had had no associated weakness, bladder dysfunction, or bowel dysfunction. The examiner, after review of the claims file, opined that that veteran had the following: History of cervical neck injury, status post myelogram 1966, [with] no evidence of radiculopathy or myelopathy. [The veteran's] relation that he had experienced continued low back pain immediately post procedure in 1966 without associated myelopathy or neuropathy is doubtfully causal related. In connection with the current issue on appeal, the veteran testified at a personal hearing at the RO in September 1997 and testified at a personal hearing before the undersigned, at the RO, in June 1998. Specifically, in September 1997, the veteran testified that he started to experience problems with his back the same day he had the myelogram in 1966. While he complained to the health care providers at that time, he was told his back would get better over time. Next, the veteran reported that two interns performed the myelogram. Moreover, these interns repeatedly, over the course of one and half-hours, stuck him with a needle in an attempt to perform the procedure. Eventually, these interns gave up, an older physician took over, and he performed the procedure in fifteen minutes. He recalled that he lay flat on his back for five days following the procedure. Moreover, following his release from the hospital, it took him more than three weeks to be able to go back to his job as a truck driver. Additionally, even after he started work, he required help to get into the cab of the truck. A little less than a year after the myelogram, he gave up driving a truck because of back pain, and took a job working at a shipyard. However, after approximately one year working in the shipyard, because he had difficulty standing on his feet all day on a concrete floor, he also left that job and started driving again. In 1969, he was hospitalized at the Salisbury VAMC for over five months. During this time he was treated for his back complaints, which treatment included physical therapy. He was also told by a VA physician that someone had "messed up" his back. X-rays taken at that time revealed dye in his head. Following his release from the hospital he was not told to come back for follow-up treatment. Prior to his 1966 myelogram, while he had had neck and shoulder problems, he said he had never had back problems. Moreover, for the last six or seven years he had periodically seen his family physician for treatment of this pain. His doctor had proscribed both Percocet and Loracet Plus for the pain. Moreover, on one occasion he saw an orthopedist, who, after a MRI, could still not tell him what was wrong with his back. Next, when the veteran testified at his June 1998 personal hearing, he reported that he had sought treatment at the Durham VAMC in 1966 because of neck and shoulder pain and numbness. However, following the myelogram, due to back pain, he had had to stay in bed for a week and thereafter, for months, he experienced difficulty walking. He also reported that the myelogram was given by two interns who took an hour and a half to perform the procedure and during that time caused him a great deal of pain. Eventually, these interns gave up, an older physician took over, and he performed the procedure in fifteen minutes. The injections were into his back just below the belt line. When the veteran complained of pain, the health care providers at that time gave him medication and told him that he had to live with the pain. However, no opinion was provided as to the etiology of his low back pain. Thereafter, after taking pain medication for three years, he was once again hospitalized in 1969. While hospitalization at the Salisbury VAMC in 1969 he was told by a physician that "somebody had hurt his back." X-rays at that time revealed that dye was still in his skull from the 1966 myelogram. In fact, he could see on the x-ray approximately ten to twelve needle tracks left over from the myelogram dye. Thereafter, he was hospitalized for approximately five months. During that time he underwent physical therapy for his low back pain. However, neither the physical therapy nor pain medication helped his back. He next underwent VA physical therapy for three weeks in 1970 at the Salem VAMC. However, after his condition failed to improve, his physical therapy was discontinued. Once again, no opinion was given as to the etiology of his back pain. Since the 1966 myelogram, he had had chronic low back pain for which he constantly took medication. Next, the veteran testified that a VA physician at the Durham VAMC, approximately seven years after his myelogram, told him that he had arthritis because of the myelogram. A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the veteran meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477, 485-86 (1999). If the veteran does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertions are inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). 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. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The veteran seeks benefits in accordance with the provisions of 38 U.S.C.A. § 1151. Initially, the Board notes that that provision has been amended since 1995, when the veteran filed his claim. However, the amendments were made applicable only to claims filed on or after October 1, 1997. See, e.g., Jones v. West, 12 Vet. App. 460, 463 (1999). Claims filed prior to October 1, 1997, are to be adjudicated under the law as it existed previously. See VAOPGCPREC 40-97 (Dec. 31, 1997). The version of section 1151 in effect when the veteran filed his claim provided, in pertinent part: [w]here any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, . . . [§ 1151 benefits] . . . shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that the requirements for a well- grounded claim under the former version of section 1151 parallel those that apply to claims of service connection. See Jones, 12 Vet. App. at 464. Specifically, the veteran must submit: (1) medical evidence of a current disability; (2) medical evidence or, in certain circumstances, lay evidence of incurrence of aggravation of an injury as the result of hospitalization, medical, or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between the asserted injury or disease and the current disability. See Jimison v. West, 13 Vet. App. 75 (1999); Jones, 12 Vet. App. at 464. The Court has also suggested, without deciding, that a continuity-of-symptomatology analysis might apply in this context. In that regard, the Court has indicated that a claim under the former version of § 1151 might also be well grounded if the file contains: (1) evidence that a condition was "noted" during the veteran's hospitalization or treatment; (2) evidence showing continuity of symptomatology following such hospitalization or treatment; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-hospitalization/treatment symptomatology. See Jones, 12 Vet. App. at 464. What is significant about the evidence described above is, paradoxically, what it does not show. None of the records on appeal includes a medical opinion that tends to show that the veteran currently suffers from chronic disability that is a residual of a myelogram performed at the Durham VA medical center in 1966. In fact, the June 1996 VA examiner specifically opined that, given the veteran's adverse symptomatology, it was doubtful that there was a causal relationship between the veteran's current low back disorder and the 1966 VA myelogram. In reaching its conclusion in this case, the Board has not overlooked the veteran's testimony and written statements to the RO. However, while a lay witness can testify as to the visible symptoms or manifestations of a disease or disability, his own opinion as to medical diagnosis or etiology, questions integral to the underlying claim, is not helpful. See Caldwell v. Derwinski, 1 Vet. App. 466 (1991); Bostain v. West, 11 Vet. App. 124 (1998) (someone qualified by knowledge, training, expertise, skill, or education must provide evidence regarding medical knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, (1992). Accordingly, the veteran's lay assertion regarding etiology do not constitute competent evidence sufficient to make his claim well grounded. (The Board notes that, while the RO attempted on a number of occasions to obtain the treatment records for the veteran's period of VA hospitalization from August 22, 1966, to September 21, 1966 (i.e., the time when he underwent the myelogram), replies from both the Durham VAMC and Federal Archives indicate that these records were archived and then lost. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Russo v. Brown, 9 Vet. App. 46 (1996).) Absent the presentation of a well-grounded claim, the Board does not have jurisdiction to act. Boeck v. Brown, 6 Vet. App. 14 (1993). Therefore, the veteran's claim must be denied. ORDER The appeal of the February 1992 denial of service connection for a right ear disability and skin disability as well as the denial of applications to reopen claims of service connection for a back disability, a neck disability, and a shoulder disability is dismissed. A claim of entitlement to benefits under 38 U.S.C.A. § 1151 for chronic back pain as a residual of a myelogram performed at the Durham VA medical center in 1966, is denied. MARK F. HALSEY Member, Board of Veterans' Appeals