Citation Nr: 0001033 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 95-17 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a psychiatric disorder secondary to low back and cervical spine disabilities. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from May 1966 to April 1968. This matter came before the Board of Veterans' Appeals (Board) from a February 1995 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico that denied the veteran's claims of entitlement to service connection for a low back disability, a cervical spine disability and a psychiatric disorder secondary to these back disabilities. A notice of disagreement was received in April 1995. A statement of the case was issued in May 1995. A substantive appeal was received from the veteran in May 1995. Hearings were scheduled to be held at the RO in August and October 1995, but the veteran canceled these hearings. This matter was remanded by the Board in April 1997 for further development. FINDINGS OF FACT 1. The medical evidence of record does not currently tend to demonstrate that the veteran suffers from a low back disability related to service. 2. The medical evidence of record does not currently tend to demonstrate that the veteran suffers from a cervical spine disability related to service. 3. Service connection is not established for either a low back disability or a cervical spine disability. 4. There is no legal basis for an award of service connection for a psychiatric disability as secondary to low back or cervical spine disability. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a low back disability is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for a cervical spine disability is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for a psychiatric disorder, claimed as secondary to low back and cervical spine disabilities is legally insufficient. 38 C.F.R. § 3.310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown a particular disease or injury resulting in disability was incurred or aggravated during active duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). A "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Further, secondary service connection will be granted when a disability is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (1999). Secondary service connection may be established for a disorder which is aggravated by a service-connected disability. Allen v. Brown, 8 Vet. App. 374 (1995). Statutory law as enacted by Congress also charges a claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). This threshold requirement is critical as the duty to assist a veteran with the development of facts does not arise until the veteran has presented evidence of a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect the claim is "plausible" or "possible" is required. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claimant therefore cannot meet this burden 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 pursuant to 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). According to the Court in Caluza, a well-grounded claim for entitlement to service connection requires competent evidence of the following: (i) current disability (through medical diagnosis); (ii) incurrence or aggravation of a disease or injury in service (through lay or medical evidence); and (iii) a nexus between the in-service injury or disease and the current disability (through medical evidence). Caluza v. Brown, 7 Vet. App. at 506. Moreover, the truthfulness of evidence offered by the veteran and his representative is presumed in determining whether or not a claim is well- grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). Low back disability and a cervical spine disability The veteran contends that service connection is warranted for low back and cervical spine disabilities that resulted from back injuries sustained while parachuting in service. Service records confirm that the veteran was a paratrooper while in service. The medical evidence of record demonstrates that the veteran currently suffers from these disabilities. Most recently, in June 1997, a VA orthopedic examination was conducted, the report of which indicates that the veteran was diagnosed as having herniated nucleus pulposus at C5-C6 and C6-C7 by magnetic resonance imaging (MRI) study with a clinical bilateral C6-C7 radiculopathy; right L4-L5 herniated nucleus pulposus by computerized tomography (CT) scan; and L5-S1 bulging disc with a clinical bilateral radiculopathy. Other evidence also reflects that the veteran suffers from low back and cervical spine disabilities. As such, the first Caluza requirement-that there be competent evidence of current disability-has been met. A review of the veteran's service medical records does not reveal that he was treated for low back or cervical spine disability while in service, or that he injured his low back or cervical spine while in service. The Board notes, however, that on a January 1968 report of medical history, completed in conjunction with the January 1968 separation examination, it is noted that he had experienced recurrent back pain, which was characterized by the examiner as "insignificant." The Board notes that the report of the separation examination indicates that the veteran's spine was normal at that time. Nevertheless, for the purpose of a well grounded analysis, the January 1969 report of medical history is sufficient to meet the second Caluza requirement- incurrence or aggravation of a disease or injury in service. The third Caluza requirement-medical nexus between the in- service injury or disease and the current disability-has not been met. Private medical evidence reflects that the veteran was seen by Pedro J. Borras, M.D., in November 1987 complaining that his lumbar condition apparently had gotten worse. It appears that the veteran indicated that his condition began in 1978, although this is not exactly clear. Neurological testing appears to have been negative. He was seen at Ashford- Presbyterian Hospital in May 1991, at which time a CT scan revealed a herniated disc at the L5-S1 and L4-L5 intervertebral spaces. In August 1991, X-rays of the cervical spine taken by Alpha M. Guzman, M.D., revealed degenerative joint disease of the cervical spine. Further, the veteran was seen by Victor M. Mojica, M.D., and Candido R. Martinez, M.D., intermittently from August 1991 to February 1995, and was diagnosed as having a herniated disc at L5-S1, L5 radiculopathy, degenerative joint disease of the cervical spine with foraminal impingement, and herniated nucleus pulposus at C4-5 and L5-S1. None of these private medical records suggests that any of the veteran's diagnosed back disabilities were related to his military service. In fact, no mention is made of the veteran's military service. VA medical evidence reflects that the veteran was seen on an outpatient basis in June 1993 with recurrent upper extremity pain and a history of herniated nucleus pulposus at the L5-S1 level. Examination, to include X-ray studies, of the cervical spine revealed mild spondylosis and disc space narrowing at C5-C6 and C6-C7. The diagnoses were rule out degenerative joint disease of the cervical spine and a history of herniated nucleus pulposus at the L5-S1 level. X- ray studies of the lumbosacral spine taken in July 1993 showed disc space narrowing at L5-S1. In mid-July 1993, the veteran was treated with cervical traction as his degenerative joint disease of the cervical spine was interfering with his activities of daily living. Further review of the VA medical records reflects that minimal degenerative changes identified with narrowing of the C5-C6 and C6-C7 intervertebral spaces and loss of signal intensity of the disc consistent with degenerative disc disease were found on MRI study accomplished in August 1993. At an examination in November 1993, it was determined that the veteran's subjective sensory symptoms (paresthesias) could result from peripheral neuropathy as well as multiple radicular irritation due to the degenerative joint disease. Another record dated in November 1993 indicates that the veteran presented with low back pain secondary to discogenic degenerative disease with current evidence of radiculopathy or acute exacerbation. A June 1994 neurology work-up was normal, and the veteran presented in October 1994 with persistent and recurrent bilateral gluteal pain. Objective findings included lumbosacral tenderness. None of these VA treatment records, including the X-ray studies, indicates that the veteran's low back or cervical spine disabilities are related to his service. A VA examination was accomplished in December 1994, the report of which notes that the veteran gave a history of being a paratrooper in service and that he injured his back on several occasions, including when he fell from an 85 foot tower. The veteran indicated that he injured his cervical spine but did not go to sick bay. The veteran's subjective complaints included cervical pain radiating to his arms and hands, numbness on the tips of his fingers, low back pain with radiation to the lower extremities with numbness of the toes, and weakness and paresthesias of the legs. He indicated that pain was worse upon walking, bending or standing for a long period of time. Objective findings included that there were no postural abnormalities nor fixed deformities of the back but that there was tenderness to palpation of the cervical and lumbar paravertebral muscles. Range of both cervical and lumbar spine motion was limited, and there was objective evidence of pain on all movements. As a result of this examination, the veteran was diagnosed as having C5-C6 and C6-C7 herniated nucleus pulposus by MRI, clinical right C6-C7 radiculopathy, clinical right S1 radiculopathy, and cervicolumbar strain. The examiner opined that the veteran's back condition may be secondary to any trauma sustained in the past. He did point out that the claims folder, to include service medical records, were not available to him to corroborate the veteran's history of trauma during parachute jumping. Pursuant to the April 1997 Board remand, another VA examination was accomplished. The report of this June 1997 VA examination indicates that the veteran referred to a stabbing pain in the cervical area with loss of strength in the arms and hands, and numbness of all fingers of both hands. The veteran also complained of low back pain with radiation to the lower extremities and a tingling sensation in the legs. He noted that pain became worse upon bending forward and that he has to seek emergency treatment about once a month to a month and a half due to severe back pain. Objective findings included that there were no postural abnormalities or fixed deformities of the back, but that there was evidence of severe cervical lumbosacral paravertebral muscle spasm. Range of lumbar and cervical motion was limited, and there was objective pain (characterized as "exquisite") on most movements of the lumbar and cervical spine. The veteran was found to have absent ankle jerks, bilaterally, which indicated damage to the S1 roots, and diminished pinprick and smooth sensation of the left L5 dermatome of the foot. The veteran also had absent right biceps and triceps reflexes which indicated damage to the right C6-C7 roots, and diminished pinprick and smooth sensation on the right C6-C7 dermatomes of the hands. As a result of this examination, the veteran was diagnosed as having herniated nucleus pulposus at C5-C6, C6-C7 by MRI with a clinical bilateral C6-C7 radiculopathy; right L4-L5 herniated nucleus pulposus by CT scan; and L5-S1 bulging disc with a clinical bilateral S1 radiculopathy. The examiner noted that he carefully reviewed the claims folder, and he opined that the veteran's cervical and lumbar spine disabilities were not related to his period of active service and that the recurrent back pain noted on the veteran's discharge from service (the medical history report) was not the precursor to any spinal disability currently present. He noted that, although parachute jumps could cause back problems, in the absence of documentation of such problems in the service medical records, including the separation examination report, and in light of an apparent job related injury in 1978, it was very difficult to establish any relationship between parachute jumps and current back disabilities. None of the medical evidence of record tends to demonstrate that the veteran's low back and cervical spine disabilities are related to his period of active duty service, to include a relationship to parachute jumps made in service. It is noted that the opinion documented in the December 1994 VA examination to the effect that the veteran's back condition may be secondary to any trauma sustained in the past is too speculative to establish a well-grounded claim. See Obert v. Brown, 5 Vet. App 30 (1993). It is noted that a more definitive opinion would have been somewhat speculative as well, given the fact that the examiner did not have the claims folder for review at the time of the examination. In fact, it appears that the same examiner conducted the most recent examination, and with the claims folder including service medical records available, came to the conclusion that the veteran's back disabilities were not related to his service. In any event, the veteran has not presented competent (medical) evidence of a relationship between his back disabilities and military service. Any statements that he has made to this effect cannot be accepted as medical evidence of a relationship between service and either disability. See Espiritu v. Derwinski, 2 Vet. App. at 494- 495. As there is no credible medical evidence demonstrating that the veteran's back disabilities are linked to his active duty service, the third Caluza requirement, in order for a claim to be well-grounded, is not met. As such, the Board concludes that these claims are not well grounded. Psychiatric disorder The veteran and his representative also contend that service connection is warranted for a psychiatric disorder, claimed as secondary to the low back and cervical spine disabilities. In this decision, however, the Board denied the veteran's claims of entitlement to service connection for these disabilities. As such, the Board finds that under the law, the veteran lacks legal grounds to establish entitlement to service connection for a psychiatric disorder. Sabonis v. Brown, 6 Vet. App. 426 (1994). In Sabonis, the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Insofar as service connection is not in effect for either of the disabilities claimed by the veteran to have proximally caused an alleged psychiatric disorder, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement, the claim of entitlement to service connection for a psychiatric disorder is without legal merit. Id. ORDER The veteran's claim of entitlement to service connection for a low back disability is not well-grounded and is therefore denied. The veteran's claim of entitlement to service connection for a cervical spine disability is not well-grounded and is therefore denied. Evidence of a legally meritorious claim not having been submitted, the appeal for entitlement to service connection for a psychiatric disorder as secondary to the low back disability and cervical spine disability, is denied. JAMES L. MARCH Acting Member, Board of Veterans' Appeals