Citation Nr: 0000389 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-32 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Associate Counsel INTRODUCTION The appellant served on active duty from September 1969 to July 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1997 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). That rating decision denied service connection for a back disorder. FINDINGS OF FACT The appellant's claim for service connection for a back disorder is plausible. CONCLUSION OF LAW The claim of entitlement to service connection for a back disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the current disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In this case, the appellant claims that service connection is warranted for a back disorder. The appellant alleges that he incurred or aggravated a back disorder as a result of a bus accident occurring at Camp Pendleton, California. After a thorough review of the claims file, the Board finds the appellant's claim plausible and therefore, well grounded. The appellant is currently shown to have a back disorder, including post diskectomy times three with degenerative joint disease. He has also testified that he has had continuous back pain ever since his discharge from active duty service. Lastly, the appellant has submitted a medical opinion from M. Jones, M.D., dated November 1998, indicating that it was "certainly possible" that the appellant's current back disorder was aggravated during his active duty service. This evidence is presumed to be credible for purposes of a well- grounded determination, and accordingly, the Department has a duty to assist in the development of facts relating to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999); cf. Morton v. West, 12 Vet. App. 477 (1999) (no duty to assist under 38 U.S.C.A. § 5107(a) absent submission of a well-grounded claim). Further development of the appellate record is in order, as detailed below in the REMAND portion of this decision. ORDER The claim of entitlement to service connection for a back disorder is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for a back disorder is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). After reviewing the appellant's claims file, the Board concludes that additional development is necessary to make an informed decision regarding the appellant's claim. Through his statements and testimony herein, the appellant alleged receiving medical treatment for back complaints in the years immediately following his active duty service. Specifically, he claims to have been treated by a chiropractor and a Dr. Copeland in the 1970s. He also claimed to have undergone back surgery in 1979. These medical records are essential to a proper and thorough adjudication of the veteran's claim herein to give the veteran an opportunity to provide medical evidence of continued post-service treatment for a back disability. Thus, the RO should contact the appellant and request that he provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers, who have treated him for his back disorder following his active duty service. In addition to the above-mentioned records, the RO should make an additional attempt to obtain the orthopedic consultation report, performed pursuant to the appellant's pre-induction examination in April 1969. Part of the veteran's claim appears to be that a pre-existing back disability had not completely resolved at the time of his entry into service. VA's duty to assist is heightened when records are in the control of a government agency. Gobber v. Derwinski, 2 Vet. App. 470 (1992). In view of the nature of the appellant's claim, all records of treatment should be obtained, if possible, and associated with the claims folder. See Littke v. Derwinski, 1 Vet. App. 90 (1990); Hyder v. Derwinski, 1 Vet. App. 221 (1991). Accordingly, the RO should make an attempt to secure these records. App. 363 (1992). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim the case is REMANDED to the RO for the following development: 1. The RO should make another attempt to secure the appellant's missing service medical records through official channels. Specifically, the RO should again attempt to secure the orthopedic consultation performed pursuant to the appellant's pre-induction examination in April 1969. 2. The RO should request that the appellant provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who have treated him since his discharge from the service for his back disorder. The Board is specifically interested in medical records from the appellant's chiropractor and Dr. Copeland, as well as medical records relating to his back surgery in the late 1970s. After obtaining any necessary authorizations, the RO should attempt to obtain copies of those treatment records identified by the appellant which have not been previously secured. See Pollard v. Brown, 6 Vet. App. 11 (1993) (duty to assist not breached by failure of the Secretary to obtain requested records where the appellant failed to identify specifically what "additional medical records" were being sought and why they were relevant; the duty to assist is not a one-way street). 3. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. The RO should readjudicate the issue of entitlement to service connection for a back disorder. Once the foregoing has been accomplished and, if the claim remains denied, both the appellant and his representative should be furnished a Supplemental Statement of the Case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been (CONTINUED ON NEXT PAGE) remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals