Citation Nr: 0003745 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-15 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.D. Jackson, Counsel INTRODUCTION The veteran had active duty from September 1969 to June 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal originally from a rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). A personal hearing was held before the undersigned member of the Board at that RO in February 1999. FINDING OF FACT The record does not contain competent evidence of a nexus between a current left shoulder disability and injury or disease during the veteran's active service. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim for service connection for a left shoulder disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran maintains that he has a left shoulder disability that resulted from his period of active service. He points out that during service he received treatment when he fell on the back of his head and neck. He claims that he also injured his left shoulder at that time. The veteran also indicates that he received treatment immediately following service for this disability at private and VA facilities in 1970 and 1971. The appellant's representative has argued that VA has expanded its duty to assist the claimant by provisions in its manual M21-1, and that the Board should determine whether the RO has followed the guidelines therein and remand the appeal for further development if the RO has not followed such guidelines. In Morton v. West, 12 Vet. App. 477 (1999), the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) rejected the argument that 38 C.F.R. §§ 3.103(a), 3.159(a); VA Adjudication Procedure Manual M21-1, Part III, para. 1.03(a) and Part IV, para. 2.10(f); and policies set forth in other VA documents require VA to assist the claimant in developing facts pertinent to the claim even though a well-grounded claim had not yet been submitted. The Court concluded that any perceived or actual failure by the Secretary to render assistance in the absence of a well- grounded claim cannot be legal error. Consequently, I see no basis upon which to comply with the representative's request in this regard. The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim; that is, one that is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of the claim because such additional development would be futile. 38 U.S.C.A. § 5107 (West 1991), Murphy v. Derwinski, 1 Vet. App. 78 (1990). An appellant has the duty to submit evidence that a claim is well grounded. The evidence must justify a belief by a fair and impartial individual that the claim is plausible. 38 U.S.C.A. § 5107(a). In Tirpak v. Derwinski 2 Vet. App. 609 (1992), the Court held that the appellant in that case had not presented a well-grounded claim as a matter of law. The Court pointed out that, unlike civil actions, the VA benefits system requires more than an allegation; the claimant must submit supporting evidence. Tirpak, 2 Vet. App. at 611. The evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or beyond the competence of the person making the assertion. See King v. Brown, 5 Vet. App. 19 (1993). The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (1999). Concerning the first element -- evidence of current disability as provided by a medical diagnosis - VA records show that in March 1998, the veteran underwent rotator cuff repair and open acromioplasty of the left shoulder. This satisfies this requirement. Concerning the second element -- evidence of incurrence or aggravation of a disease or injury in service -- the veteran claims that he injured his left shoulder when he fell from a bunker landing on the back of his head. The service medical records relate that in April 1971, the veteran reported that he fell on his neck. He was given methyl salicylate to use as a liniment with heat. He was also prescribed Parafon Forte. However, he failed to report a left shoulder injury at that time. Nonetheless, for the purpose of a well-grounded claim, the veteran's statements concerning his injury in service is sufficient evidence of the second Caluza element. Incidentally, the Board notes that the veteran did not report a history of a left shoulder injury at his June 1971 separation examination, nor is there a medical diagnosis regarding a left shoulder disability reported. In fact, there is no evidence of medical treatment for a left shoulder disability until 26 years subsequent to service discharge. Cf. Mense v. Derwinski, 1 Vet. App. 354 (1991) (appellant failed to provide evidence of continuity of symptomatology of low back condition). The veteran's problem with presenting a well-grounded claim in regard to his left shoulder disability arises with the third element. The veteran has not provided any competent medical evidence of a nexus between current disability and disease or injury during service, as required by Caluza. The medical evidence of record does not include any competent medical statements or opinions concerning a nexus for a left shoulder disability and disease or injury during military service. The only evidence of record that suggests a causal relationship between the veteran's claimed residual disability and injury in service is the veteran's statements. However, the Board finds that his statements are not sufficient competent evidence to establish the etiology of his left shoulder disability. Medical diagnoses involve questions that are beyond the range of common experience and common knowledge, and require the knowledge and experience of a trained physician. Because the veteran has no expertise in medical matters, he is not competent to make a determination on the etiology of his cervical spine disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As noted the veteran asserts that he initially injured his left shoulder when he fell from a bunker during enemy fire. While the veteran engaged in combat with the enemy, the provisions of 38 U.S.C.A. § 1154 (West 1991) do not assist in advancing the veteran's claim. See Kessel v. West, 13 Vet. App. 9 (1999) (en banc). To the extent that the veteran has reported an injury while in combat, the Board accepts his statements. However, there remains an absence of competent evidence of a nexus between any in-service injury and the veteran's current left shoulder disability. It is noted that among the more recent VA outpatient record that date between 1997 and 1998 is an undated VA outpatient report that shows a reported history of the veteran initially injuring his left shoulder in Vietnam. However, this is based on the veteran's reported history. The physicians are clearly merely recording information provided by the appellant and not providing a medical opinion as to a past history let alone relating a current diagnosis of a left shoulder disability to any incident of service. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence."). Therefore, this evidence cannot be considered as competent medical evidence of a nexus between current left shoulder disability and military service. Furthermore, the veteran reported in his February 1999 personal hearing that several VA physicians indicated that his left shoulder disability was etiologically related to military service. Although the veteran indicates that medical personnel reported to him that his left shoulder disability resulted from the inservice accident, the Court in a similar factual scenario indicated that "hearsay medical evidence, transmitted by layperson, cannot be sufficient to render a claim well grounded." See Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). In fact, a review of the VA records do not show such an opinion by any physician from the VA facility named by the veteran. Otherwise, the medical records are silent as to the etiology of his left shoulder injury. In summary, the veteran has failed to present medical evidence providing a nexus between his current disability and disease or injury during his military service. Accordingly, the Board concludes that he has not met his burden of presenting a well-grounded claim for service connection for a left shoulder disability. When a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim. VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). Here, the RO fulfilled its obligation under section 5103(a) in a statement of the case and a supplemental statement of the case that informed the veteran of the reasons his claim had been denied. Unlike the situation in Robinette, he has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well grounded. As noted above, the more recent VA records did not contain an opinion linking the current left shoulder disability to service. Furthermore, the veteran has claimed treatment immediately subsequent to service by private and VA physicians. However, as explained to the veteran in an April 1998 letter from the RO, two private physicians identified by the veteran reported that the veteran was not their patient. Further, the RO was unable to locate another private physician from the information provided by the veteran. Still further, in 1988, the RO sought to obtain VA records of any pertinent treatment between 1971 and 1980 from the VA medical center in Salisbury, North Carolina. However, there were not any records available showing treatment for the veteran. ORDER Service connection for a left shoulder injury is denied. MARY GALLAGHER Member, Board of Veterans' Appeals