Citation Nr: 0000824 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 98-10 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Mairi Nicola Morrison, Associate Counsel INTRODUCTION The veteran had active service from December 1961 to December 1964. This case has come to the Board of Veteran's Appeals (hereinafter the "Board") on appeal from a January 1998 rating decision of the Department of Veterans Affairs (hereinafter "VA") Regional Office in Chicago, Illinois (hereinafter "RO"), which denied the veteran's claim of entitlement to service connection for a back disorder. FINDING OF FACT The veteran has not submitted competent medical evidence of a nexus between his current back disability and his period of active service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a back disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that the RO erred in failing to grant service connection for a back disorder. He asserts that service connection for a back disorder is warranted on the basis that his current back disorder developed from a back injury sustained in service. Service connection may be granted for a disability due to an injury or disease incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also 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). The threshold question before the Board, however, is whether the veteran has presented a well-grounded claim for service connection. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one that is meritorious on its own or capable of substantiation. Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). While the claim need not be conclusive it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to his claim, and the claim must fail. Epps v. Gober, 126 F.3rd 1464, 1467-1469 (Fed. Cir. 1997). In order for a claim for service connection to be well grounded, the veteran must submit evidence of a current disability (a medical diagnosis). Second, he must submit evidence of incurrence or aggravation of a disease or injury in service (medical or lay evidence as appropriate). Third, he must submit evidence of a nexus between the in-service disease or injury and the current disability (medical evidence). Epps a 1468, Caluza v. Brown, 7 Vet.App. 498, 505 (1995). Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and that the same condition currently exists. The evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet.App. 488, 495-98 (1997). In this case, the veteran had active service from December 1961 to December 1964. Upon entry into service in 1961, the veteran did not report and the examining physician did not note any back abnormalities. In his initial claim form, and during a hearing at the RO, the veteran indicated that he injured his back in service in December 1964, when he was climbing up the back of a truck, it lunged forward and he fell on concrete. Service medical records confirm that a back injury indeed occurred in December 1964, when the veteran twisted his back upon entering a vehicle. He was treated at an Aid Station with Darvon and it was recommended that he do no heavy lifting. No diagnosis was provided. During his separation examination, the veteran did not complain of back problems and his spine was noted to be normal. However, this examination took place in October 1964, three months prior to the aforementioned injury. In September 1997, the veteran filed a claim for service connection for twisting his back in service. Post-service medical records include clinical data from Iltifat Alavi, M.D., and LaGrange Memorial Hospital dated from December 1970 to January 1993. In May 1978 the veteran had complaints of pain and stiffness in each cheek with sitting. Dr. Alavi's records are negative for actual back complaints until August 1982, when the veteran reported that his back was hurting again. In September 1991, Dr. Alavi noted a vertebral condition with left sciatica. An October 1992 lumbar spine x-ray report notes degenerative disk disease with marked narrowing of the interspace at L5-S1 with secondary facet arthrosis at L5-S1 bilaterally. There was no reference to service in these records. In March 1999, the veteran testified at a personal hearing at the RO. He described his twisting injury in service. (Transcript - 2). He also testified that when discharged in 1964 he was not in pain and he wanted to get out. (T-9). He reported seeing a physician in 1970, but those records could not be obtained. (T-11). Under the statutory and regulatory provisions previously noted, the veteran has submitted evidence satisfying prong one of a well-grounded claim. That is, he has submitted evidence of a current disability, namely degenerative disk disease or a vertebral condition with left sciatica. He has also satisfied prong two by submitting evidence, including testimony and service medical records, showing an in-service back injury. It is the lack of evidence satisfying the third prong that causes the veteran's claim to fail. The veteran has presented no competent medical evidence of a nexus between his current back disorder and his period of active service. Although the veteran clearly believes that he has a back disorder that is related to service, his assertions in this regard are insufficient to prove a matter requiring medical expertise. Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992). The claim fails as well when analyzed under the chronicity and continuity of symptomatology provision of 38 C.F.R.§ 3.303(b). First, despite the fact that the veteran presented with back symptomatology once in service, no physician attributed that symptomatology to a chronic back disorder. Indeed, he was seen for complaints following a twisting injury. Even assuming for the moment, however, that the veteran's reported in-service back symptoms constitute sufficient evidence of an in-service condition, there is still no medical evidence reflecting that the condition was chronic. Moreover, the veteran has not submitted medical evidence linking his current back disorder to the alleged continuity of back symptomatology exhibited after discharge. While accepting the veteran's reported complaints of chronic back problems after service, we note that the medical evidence which has been submitted does show back complaints, but includes no reference to service or event of service origin as a basis for those complaints. In conclusion, the Board finds that an essential element of a plausible claim for service connection for a back disorder, a nexus, is not present. There is no competent medical evidence that the veteran had a chronic back condition in service or that his current back disorder is related to the continuity of back symptomatology the veteran claims he experienced since service. As such the veteran has not presented a well- grounded claim. In the absence of a well-grounded claim, the VA has no duty to assist the veteran in developing the record to support his claim for service connection. Epps, 126 F.3rd at 1469. The Board acknowledges the veteran's reference to private medical records that he has not been able to obtain, and advises him that if he is able to obtain such records he may submit them in the future. McKnight v. Gober, 131 F.3rd 1483, 1484-1485 (Fed. Cir. 1997). At this point, however, the Board views the Statement of the Case, Supplemental Statement of the Case and its discussion as sufficient to inform the veteran of what evidence he should present to have his claim accepted as well grounded, and to explain why his current attempt fails. Robinette v. Brown, 8 Vet.App. 69, 77-79 (1995). ORDER Evidence of a well-grounded claim not having been submitted, service connection for a back disorder is denied. STEVEN L. COHN Member, Board of Veterans' Appeals