BVA9503334 DOCKET NO. 93-09 990 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from October 1943 to December 1945. Service connection is in effect for postoperative pilonidal cyst and prostatitis, each evaluated as zero percent disabling. This appeal is taken from the rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in June 1991. The veteran provided testimony at a personal hearing held at the RO in January 1992, a transcript of which is in the file. CONTENTIONS OF APPELLANT ON APPEAL It is argued that the veteran had back problems as noted at the time of his separation from service, that he was treated on several occasions soon after separation, and that these back problems have resulted in his current back complaints. It is argued that the veteran was treated for prostate complaints when he was actually exhibiting symptoms of a chronic back disorder, and that the evidence relating to postservice back complaints supports his claim that the problems have been chronic in nature. 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 a chronic back disorder is not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issue on appeal is of record. 2. There is no evidence or medical opinion that the veteran has a chronic back disorder which is related to service. CONCLUSION OF LAW The veteran's claim for service connection for a chronic back disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A(n appellant) 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 (l992). 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). The Board may dismiss any appeal which fails to allege specific error in fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5) (West 1991). The veteran is seeking service connection for a chronic back disorder. Development of the Evidence For purposes of clarification, the Board notes that the veteran has on occasion argued that he has not been given adequate assistance in the development of his claim in obtaining old VA records as well as recent ones, and in acquiring private physician's records. The United States Court of Veterans Appeals (the Court) has held that pursuant to 38 U.S.C.A. § 5103(a) (West 1991), an obligation is imposed on the VA prior to the time when the duty to assist attaches under 38 U.S.C.A. § 5107(a), [namely upon submission of a well-grounded claim], to advise the claimant of the evidence necessary to complete the application for benefits. Morris v. Derwinski, 1 Vet. App. 260, 264 (1991); and Robinette v. Brown, No. 93-985, (U.S. Vet. App. Oct. 21, 1994) slip op. at 12-13. In the instant case, a review of the file shows that the veteran has indeed been adequately advised by the RO as to what evidence is required to support his claim for service connection for a chronic back disorder. This notification has been incorporated into written Statements of the Case and Supplemental Statements of the Case and orally at the personal hearing held at the RO. In fact, the veteran has acknowledged the need for evidence relating to post-service care, particularly in the periods shortly after separation from service; to some extent, he has apparently sought those records himself and the RO has given him additional time to do so as requested. Thereafter, the RO further assisted the veteran by directly attempting to obtain additional VA records as well as private medical evidence relating to treatment by Dr. R. Leib and Dr. Strelinger in 1946 and 1947. Available pertinent VA records are now in the file or otherwise certified as not available; additional recent clinical records for VA care, if any, would not have a tendency to demonstrate the existence of back disability in service but rather concern his current clinical condition. This development was all done prior to the veteran establishing a well-grounded claim. Service Connection for Chronic Back Disability 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 (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). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, l946, and arthritis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The veteran has testified that he injured his back in service when lifting heavy gun magazines. Transcript, hereinafter known as Tr., at 1. He has questioned how he could have been found to have an unremarkable back on the separation examination when no X-rays were taken. Tr. at 3. Concerning chronic back complaints since 1945, the veteran testified that he had been seen by Dr. Strelinger in 1946 or 1947, and Dr. Lieb, who investigated whether there were kidney problems. Tr. at 2-3. He also named various physicians who had seen him for prostate examinations and others who had treated him since the late 1950's and in the 1980's. The veteran's service medical records show no complaints or clinical findings of any back injury or disability. At the time of separation examination in December 1945, the veteran was noted to have an inactive pilonidal cyst; he had a "history of backache" but "no subjective complaints". A physical examination of his spine was "normal". The mere complaint of a backache at separation from service, in view of the normal findings on examination of the spine, would not necessarily call for a spinal X-ray. A VA examination in 1946 and another in 1947, a statement by a private physician (S. Deehl, M.D.) in September 1946, and affidavits by two service comrades (R. Miller and W. Dennehy) in 1947, all referred to the veteran's back pain in association with prostatitis. None of the examining physicians suspected orthopedic problems or ordered spinal X-rays and they all seemed satisfied that the backache was not of a musculoskeletal nature. A. Strelinger, M.D., whom the veteran reported treated him in 1946, has recently indicated that records for that period of time no longer exist. No further evidence has been obtained from any other physicians who reportedly treated the veteran in the 1946- 1947 time-frame. However, it is noteworthy that the Board is not without clinical evidence contemporaneous thereto, since of record are the statements from the two affiants in 1947, the statement by Dr. Deehl, and the report of the VA examinations in 1946 and 1947. None of these provide a basis for finding that the veteran then demonstrated a chronic organic back disorder of service origin. The evidence in the file indicates that on VA examination in 1988, there was neither complaint nor clinical finding of a back disorder. In December 1988, the veteran underwent surgical excision of a pilonidal cyst (for which a 100 percent temporary rating was assigned by the RO). Since then VA clinical records have shown that in August 1989, on referral from Dr. Strickland at the Orlando facility (whom the veteran elsewhere described as his private physician), he was treated for chronic low back pain and right sciatica. The veteran reported a history of having stooped down to pick up a garden hose 10 days before with instant groin pain with right sciatic/peroneal radiation. After being on medication for a week, he was walking carefully. Examination showed loss of lumbar curve, sciatica into the right calf and moderate paraspinous muscle spasm on the left. The veteran has submitted copies of a chiropractic chart provided him by Dr. I. Strickland regarding possible effects of spinal misaligments, and general guidelines for strengthening the spine. Dr. Strickland diagnosed the veteran's back problems as lumbosacral strain, sciatica and scoliosis. In October 1989, VA X-rays reportedly identified osteoarthritis involving L-2, L-5 (with calcification near the tip of the greater trochanter, calcific tendinitis and coccygeal sacral dislocation noted to have been found in July 1989). In February 1990, the veteran requested further evaluation because of progressive disability and lower back pain over the past 8-10 months. The veteran complained of mild low back pain with radiation down the right side during flexion to touching toes and point tenderness in the sacroiliac area. A magnetic resonance imaging (MRI) test in February 1990 showed no evidence of a herniated nucleus pulposus or spondylitic changes. There was minimal decreased signal from L-3/L-4, L-4/L-5 and S-1 consistent with mild dehydration, and no other abnormalities noted. In summary, the evidence of record shows no orthopedic back problem of a chronic nature until 1989. At separation from service and shortly thereafter, there were some mild complaints of occasional back ache but these were associated with prostatitis and considered in evaluating that service-connected disability. The arthritis of the spine suggested in the 1989 X- rays was not documented for more than 3 decades after service, and appeared about the time the veteran experienced a back injury while working in the garden in the late 1980's. Though the veteran claims that his backache may have been mistakenly attributed to prostatitis and other non-orthopedic disorders by VA and private physicians, he has not offered any expert medical opinion to support his theory and his arguments in this regard are unconvincing. The veteran is not medically trained and is not qualified to render such a medical opinion, and this opinion is not otherwise borne out by the evidence of record. See Espiritu v. Derwinski, 2 Vet.App. 492 (1993). There is no evidence or medical opinion associating any current back complaints of an orthopedic nature, first demonstrated years after service, or arthritis first shown since 1989, with any back pain of service origin. In reaching its decision, the Board has taken into consideration all of the evidence of record. However, absent evidence or medical opinion that he has any chronic back disorder which is or may be presumed to be of service origin, the Board finds that the veteran's claim is not well-grounded, and therefore, must be dismissed. 38 U.S.C.A §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.307, 3.309. If the veteran were to submit medical evidence (such as an opinion) showing that a current chronic back disability is related or proximate to service or service-connected disability, his claim in this regard would be well grounded. See Robinette v. Brown, op. cit. ORDER The claim for service connection for a chronic back disorder is not well grounded; the appeal is dismissed. THOMAS J. DANNAHER 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.