BVA9500040 DOCKET NO. 93-08 013 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for a low back disability, claimed to be a pinched nerve. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J.R. King, Associate Counsel INTRODUCTION The veteran served on active duty from July 1959 to October 1963. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 1992 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Little Rock, Arkansas, which denied the veteran's claim for service connection for a pinched nerve in his lower back. CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains that he suffers from a pinched nerve in his lower back as the result of an automobile accident during service. He claims that he was treated during service for lower back injuries after a 1960 automobile accident and that he has continued to suffer from low back pain as a result of the 1960 injuries. He maintains that he was hospitalized and placed in traction after a sneeze caused low back pain in the earlier 1970's, and that he received treatment for low back pain on several occasions thereafter. 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 has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for a low back disability is well grounded. FINDINGS OF FACT 1. A chronic low back disorder was not identified during the veteran's military service or when he was examined for separation from service in 1963. 2. A chronic low back disorder has not been clinically identified in the post-service medical records, and no competent evidence linking any current pathology of the spine to any incident of service is of record. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for a low back disability. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in this case is whether the claim is well grounded under 38 U.S.C.A. § 5107 (a) (West 1991). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than a mere allegation; a claimant must submit evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). If he has not, his appeal must fail and there is no duty to assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). This requires a finding that there is a current disability which has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) and Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). 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) (1993). The veteran contends that he currently experiences constant pain in his lower back as well as a sharp pain which radiates down his left leg as the residuals of an automobile accident he was involved in during service in 1963. In this regard, the veteran's service medical records reflect that he was involved in an automobile accident in September 1960. He was treated for complaints of a painful neck. The examiner reported that he was in a dazed condition and that a 1.5 cm. nodule was discovered below the left occipital region. Slight tenderness was identified along the paraspinal cervical muscles. The initial impression was questionable whiplash, injury of the neck. Following 6 days of treatment, the final diagnosis was as fol- lows: "Contusion, interscapular area of the back, mild." Subsequent clinical records reflect that the veteran was treated for a laceration of the finger in November 1960 and for a variety of other complaints from that time until the time of separation from active duty. No further reference to a disability of the cervical spine exists in the service medical record. There is no clinical reference whatsoever with regard to an injury or disability of the thoracic or lumbosacral spine. Reports of medical history and reports of medical examination dated in June 1962 and September 1963 reflect that the veteran reported no pertinent history and that clinical evaluations on both occasions were negative for any pertinent abnormality. The veteran's initial application for compensation was received in November 1991. On this application he reported that he pinched a nerve in his lower back in 1960 or 1961 and received treatment at that time. He indicated that he next received treatment for this condition in 1973 or 1974 at Salinas Memorial Hospital. In a statement dated in January 1992, the veteran related that after his discharge he was treated with traction at the Salinas Memorial Hospital after he sneezed. He indicated that he received this treatment sometime between 1970 and 1972 for what was described as a pinched nerve of the lower back. He also stated that he was treated at several other locations in Arkansas and California, including the Soledad Clinic in Soledad, California, for lower back pain. Records from the Salinas Valley Memorial Hospital reflect that the veteran was hospitalized in November 1973 for diabetes mellitus. It was noted that his history included hospitalization for observation for a motor vehicle accident. No other pertinent history, complaints or findings were noted. When the veteran was released from the hospital in November 1973 the following diagnoses were given: diabetes mellitus and organic heart disease, left bundle branch block. Private medical records from Shannon Card, M.D., and the Carroll General Hospital for the period from 1984 to 1991 reflect that the veteran was seen on numerous occasions for follow-up for diabetes mellitus. These extensive records are entirely negative for pertinent findings. Medical records of the Lutheran Hospital of Fort Wayne, Indiana, reflect that the veteran was seen at the emergency department in June 1986 for complaints of low back pain which had its onset while the veteran was helping to lift a 200 pound object earlier that day. X-ray study of the lumbosacral spine was interpreted as showing no significant abnormality of the bones or joints. The diagnosis was muscular strain. The veteran was released from the hospital the same day in stable condition. In November 1992 the veteran was accorded an examination for disability evaluation at the Arkansas Department of Corrections on behalf of the VA. The veteran reported that he was hospitalized for one week in 1960 for whiplash and lower back pain following an automobile accident. He related that his "back was good till 1968" when he was hospitalized for low back strain for 2 weeks. The veteran presented complaints of episodes of sudden low back pain. Examination revealed that the veteran did not walk with a limp and that his gait was "O.K." The examiner stated that no significant limitation of motion was noted. No tenderness was found. X-rays of the lumbosacral spine from multiple views were interpreted as showing no definite abnormality. The veteran has claimed that the 1960 automobile accident resulted in a pinched nerve in his back. The evidence of record reflects that the veteran was treated in 1960 for a contusion of the interscapular area of the back, which resolved long before he was separated from the military in 1963. Moreover, the veteran reported no residuals of this injury on his separation examination and none were found by clinical evaluation. Thus, the contemporaneously recorded evidence reflects that the contusion sustained in the September 1960 automobile accident was acute and transitory, and was in the interscapular area of the back, not the lower back. In evaluating this claim, the Board must attach by far the greatest weight to the clinical evidence prepared during or closely proximate to service. Biggins v. Derwinski, 1 Vet.App. 474, 476 (1991). Thus, the service medical records do not identify a chronic back disorder. The post service medical records do not establish continuity of symptomatology. These records are entirely negative for pertinent findings except for the June 1986 records which document that the veteran was treated for muscular strain after helping lift a heavy object. Thus, not only is continuity of symptomatology not shown, but additionally the only pertinent records added to the record do not support the veteran's claim inasmuch as the June 1986 records from the Lutheran Hospital reflect that the veteran sustained an intercurrent injury of the low back. Significantly, the record, including the results of the examination for disability evaluation of November 1992, does not contain any clinical data showing the presence of a current back disorder and likewise does not contain a medical opinion which would tend to relate any current symptomatology to an incident of service. In view of the above, the Board concludes that the veteran has not submitted evidence of a well-grounded claim. In Grottveit v. Brown, 5 Vet.App. 91, 93 (1993), the Court of Veterans Appeals held that where the determinative issue involves medical diagnosis or causation, there must be competent medical evidence supporting a claim to make it "plausible" and thus well grounded. If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. Id. Indeed, a purported adjudication of a claim which is not well grounded is a nullity in contemplation of law. See Grivois v. Brown, 5 Vet.App. 91 (1993). Finally, it is noted that by dismissing the veteran's current appeal, he is not burdened with a prior decision on the merits. Therefore, should he be able to present a well-grounded claim in the future, he will not face the higher hurdle of presenting new and material evidence to reopen his claim. McGinnis v. Brown, 4 Vet.App. 239 (1993). ORDER The claim of entitlement to service connection for a low back disability, claimed to be a pinched nerve, is dismissed. GARY L. GICK 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 determation. 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, pro- vided 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.