BVA9508428 DOCKET NO. 93-13 729 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for chronic residuals of a low back injury. 2. Entitlement to service connection for a chronic sinus disorder. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from July 1972 to July 1975. This appeal is from a rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, in March 1992. The veteran provided testimony at a personal hearing held before a Hearing Officer at the RO in March 1993. A transcript of that hearing is of record, hereinafter referred to as Tr. CONTENTIONS OF APPELLANT ON APPEAL The veteran argues that he developed back, sinus and blood pressure problems as a result of service. In general, he has argued that if all of his medical records were reviewed, the benefits requested would be granted. 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 veteran's claim for service connection for chronic residuals of a low back injury, a chronic sinus disorder and hypertension is not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. During service, the veteran twice complained of headaches which he attributed to sinusitis, o either; there were no complaints or clinical findings of a sinus disorder or residuals of any back disability on the separation examination. 3. A single complaint of back (waist) pain without positive clinical findings was recorded in service; subsequently, chronic back pathology was first demonstrated following an occupational injury in 1988. 4. There is no evidence of inservice hypertension; hypertension has not been diagnosed or treated since service, and if present, was not shown until years after service and is not of service origin. CONCLUSION OF LAW The veteran's claim for service connection for chronic residuals of a low back injury, chronic sinus disorder, and hypertension is not well grounded. 38 U.S.C.A. §§ 5107(a), 7105(d)(5) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has questioned whether all of the evidence has been reviewed. In this regard, some of the records that the veteran had mentioned as unavailable appear to be in the file for review (i.e., reports from Dr. Poteet in the 1970's and reference of the veteran's having been at the VA in November 1975). Extensive post-service private treatment records extending from soon after separation from service to the present are in the file and appear to be representative of what is reasonably available. Moreover, the veteran has not identified other specific records which might have probable impact on his claim, i.e., which show a chronic disability as opposed to an isolated symptom, and/or that attribute any of his alleged disorders to service. To the contrary, his testimony would seem to indicate that there is no other evidence; and all of the evidence in the file is part of the review undertaken on appeal by the Board. The Board finds that the evidence of record provides a fully adequate basis upon which to reach an equitable disposition of this case, and that it is unnecessary to endeavor to obtain additional records. Well Grounded Claim In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that: A veteran claiming entitlement to 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. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In Rabideau v. Brown, 2 Vet.App. 141 (1992), the Court held that in the absence of evidence of a current disability which could be attributable to service, the veteran had not submitted evidence "probative of the issue at hand." There must be a current disability which has a definite relationship with a disease or some other manifestation of the disability during service. See also Cuevas v. Principi, 3 Vet.App. 542 (1992). Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1994). 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) (1994). In the case of conditions such as hypertension, service connection may be granted on a presumptive basis if the disorder is manifested to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). To be a well-grounded claim, a claim need not be conclusive but it 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, 263 (1992). The quality and quantity of evidence required to meet this statutory burden of necessity depends upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident occurred in service, competent lay testimony (including a veteran's solitary testimony) may constitute sufficient evidence to establish a well-grounded claim. See Cartwright 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. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by 38 U.S.C.A. § 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). See Grottveit v. Brown, op. cit. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d). In this regard, since a Board decision that a claim is not well grounded does not reach the merits of the claim, it is not deemed a final decision of the Board. Chronic Sinus Disorder The veteran has testified that he first developed sinus problems while at Fort Benning, Georgia, after boot camp, for which he received medications, but was not actually told that it was due to his sinuses. Tr. at 5. He indicated that prior to service, his eye had become swollen on one occasion and a physician had told him it was due to sinusitis. He testified that he was pretty sure that he had been put on quarters or something for his sinus complaints in service. Tr. at 6. He described his symptoms as involving a week or so of headaches, runny nose and itchy eyes, drainage into his throat and pressure around his eyes. Tr. at 7-8. He indicated that he also had since been found to have some unrelated allergy problems. Tr. at 9. He said he had had no further problems like the pre-service eye swelling until about a year earlier, and that this had been attributed to a sinus disorder as well. Tr. at 10. The clinical evidence of record shows that on two occasions in service, in December 1973 and January 1975, the veteran complained that he had headaches. On the former occasion, he gave a history of "chronic sinusitis"; an upper respiratory infection was diagnosed. On the latter occasion, while the veteran again opined that his headache was due to sinus problems, there was no nasal discharge, and the examiner noted that he doubted it was sinusitis but probably functional. Medication was prescribed. Sinus X-rays were negative. No sinus complaints or clinical findings were noted on the separation examination in May 1975. Following service, the veteran has had periodic upper respiratory complaints which did not relate to his sinuses, i.e., chest congestion, etc. In March 1980, the veteran complained of a sore throat due to sinus drainage and medication was prescribed. In October 1980, persistent and recurrent upper respiratory infection was noted. A sinus X-ray taken at the University Medical Center in November 1982 showed the paranasal sinuses to be well developed and aerated. In August 1985, at a time when the veteran also complained of edema under the left eye, a diagnosis was given of sinusitis although there was no identification of the clinical basis for that diagnosis. Thereafter, respiratory problems, including bronchitis and sinusitis have been diagnosed. The veteran has not submitted evidence "probative of the issue at hand." He has not submitted evidence to justify a belief that a chronic sinus disorder was manifested in service. Furthermore, any sinus problems the veteran may have had since service are not reflective of a chronic sinus disability of service origin. In this regard, the Board notes that any actual diagnosis of sinusitis has been limited and apparently without objective confirmation such as X-rays. In fact, the few reports of sinus X-rays of record are negative for sinusitis. Finally, no evidence or medical opinion has been presented which links any current chronic sinus disorder with service. While the veteran himself may have attributed his occasional headaches and some other symptoms to sinusitis in service and since, he is not trained in medicine and is not qualified to render such a judgment. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, in Grottveit the Court also indicated that lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Chronic residuals of a low back injury The veteran has testified that he did not recall that he injured his back in service, but that he went to the hospital with back complaints while in Germany. He described the back symptoms for which he received no treatment or medications. He reported that these symptoms had continued thereafter, but he had not received treatment or missed work as a result. Tr. at 10-13. He testified tha he had received back care consisting of muscle relaxants in September 1975 from Dr. Poteet; and soon thereafter, he went to the VA; he had not gone to the VA after 1976 or so. Tr. at 15- 17. He indicated that he had a copy of certain files with him [these clinical records were added to the file]. Tr. at 20. Service medical records show that on a single occasion in service, in November 1974, the veteran complained of pains in his back at the waistline (L-3) level. There had been no symptoms of urinary tract infection and no acute onset. The lumbosacral spine X-ray report identified the clinical history as non-traumatic pain, lumbosacral joint "with lifting"; the X- ray was negative for significant abnormality. Urinalysis was also normal. He was given Robaxin and told to use moist heat. Thereafter in service, including on the separation examination, there were no complaints or clinical findings of any low back disorder. Evidence relating to the veteran's postservice back complaints includes a statement from a pharmacist, M. Brock, dated in December 1992, to the effect that during the years from 1975 until he sold his drug store in 1989, the veteran bought over- the-counter pain medications for his back, and the pharmacist filled a number or prescriptions for the veteran's back problems. While the Board has no reason to question the veracity of this witness, the recollection is not persuasive to the claim at hand since it given many years after the purported occasional sales; and does not answer pertinent questions of any exact time frames during which medications were reportedly purchased or the basis on which the pharmacist remembered that the medications were for back as opposed to other symptoms. Moreover, the statement encompasses a vast spectrum of some 14 years; and finally, it is not supported by corroborative documentation such as store records or physician's clinical reports (i.e., that a phone call had been made to a pharmacy for medication as in the case of respiratory complaints). As for post-service incidents relating to intercurrent back injury, a report of outpatient care at the University Medical Center in 1983 shows that the veteran had fractured a finger while working on his car. Concurrently, he complained of left lumbar pain. The examiner noted that he had not been lifting nor had he fallen and he had no urinary symptoms. A urinalysis was negative. Nonradiating back pain, not accentuated by back flexion, was demonstrated. Pertinent diagnosis was mild back muscle strain. The evidence also includes reports from the Jackson Hospital and Clinic, Inc., as well as from several private physicians, including L. Williams, D.O., and J. Hackman, M.D., which refer to the veteran's having sustained an occupational injury to the low back in May 1988. Dr. Hackman summarized that while the veteran was working as a law enforcement officer, he stopped a tractor trailer and climbed on it; as he started to get down, he lost his footing, fell and injured his back; thereafter he had developed ongoing back complaints. A chiropractor, Dr. T. Murphy, in a statement in August 1988, indicated that he had treated the veteran since May 1988 for a low back injury which he opined was due solely to his May 1988 accident with the tractor trailer. Dr. Williams, in an August 1988 statement, indicated that the initial back injury was in May 1988, but this had been exacerbated in early July 1988 by lifting, and since then, symptoms had been of a herniated disc with impingement and/or irritation of the S-1 nerve root. Clinical records show that after a lumbar myelogram in February 1989, the veteran underwent a laminectomy, L-5/S-1, right, for herniated disc. He has since had ongoing back complaints primarily involving some pain. A magnetic resonance imaging test (MRI) in June 1991 showed degenerative disc material at L-5/S-1 with mild posterior protrusion involving the right nerve root. In summary, the veteran has not submitted evidence to justify a belief that he has chronic residuals from the any back problem of service origin. Statements and clinical evidence received from VA and private physicians do not attribute any of the veteran's present back problems to the single episode of acute back pain in service. The claimant may render his personal opinion, however, he is not a medical expert, and as such, is not competent to offer medical opinions. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). See Espiritu, and Grottveit, op. cit. Hypertension The veteran has testified that when he underwent his separation physical in 1975, he was told that his blood pressure was a little high and should be watched. He reported that that had not been the first time he was told his blood pressure was high, and that different civilian-type doctors had told him the same but that it was nothing to worry about. Tr. at 2. He further testified that other than what he was told by the corpsman at separation, to date, he has not been diagnosed as having hypertension and has not been given medication for hypertension by a physician. Tr. at 4. Service medical records show no complaints or clinical findings of elevated blood pressure readings. On the entrance examination in July 1972, the veteran's blood pressure was 100/70. On the separation examination in May 1975, his blood pressure was 132/68. Since service, a number of blood pressure readings have been recorded. In the year immediately following service, no elevated blood pressure readings were recorded. Except for an emergency outpatient visit to University Medical Center in September 1983 for epigastric distress when one borderline diastolic blood pressure reading of 140/90 was recorded, all blood pressure readings of record after separation from service show essentially normal blood pressure until July 1991, when one systolic reading was 158. The veteran has testified that he has never been treated for or diagnosed as having hypertension by a physician since service, and there is nothing in the file to refute that assertion. The Board finds that no sound basis has been presented for the veteran's claim that he has hypertension or that hypertension is or may be presumed to be the result of service. In that regard, the claim is also not well grounded. ORDER The claim for service connection for residuals of a low back injury, chronic sinus disorder and hypertension is not well- grounded, and is therefore dismissed. RENÉE M. PELLETIER 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.