Citation Nr: 0006733 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-12 412A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for degenerative disc and joint disease of the lumbar spine. 2. Entitlement to service connection for degenerative disc and joint disease of the cervical spine. 3. Entitlement to service connection for carcinoma of the colon. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the benefits sought on appeal. The veteran served on active duty from January 1966 to January 1968. FINDINGS OF FACT 1. There is no medical evidence that establishes a causal nexus between the veteran's current degenerative disc and joint disease of the lumbar spine and his military service. 2. There is no medical evidence that establishes a causal nexus between the veteran's current degenerative disc and joint disease of the cervical spine and his military service. 3. There is no medical evidence that establishes a causal nexus between carcinoma of the colon and the veteran's military service. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for degenerative disc and joint disease of the lumbar spine is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran's claim of entitlement to service connection for degenerative disc and joint disease of the cervical spine is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The veteran's claim of entitlement to service connection for carcinoma of the colon is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Applicable Law. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may also be allowed on a presumptive basis for certain diseases, such as arthritis or malignant tumors, if they become manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111, 1137 (West 1991). Clear and unmistakable evidence that the disability existed prior to service will rebut this presumption. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). The United States Court of Appeals for Veterans Claims (Court) has held that intermittent or temporary flare-ups of a pre-existing injury or disease during service do not constitute aggravation. Rather, the underlying condition must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The threshold question which must be answered in this case, however, is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The veteran 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(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The veteran must satisfy three elements for the claim for service connection to be well grounded. First, there must be competent evidence of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury. Lastly, there must be medical evidence of a nexus or relationship between the in-service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341 (1996). In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumption period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Thus, the claimant is required to establish a nexus between the claimed disability and his/her active military service, even if a continuity of symptomatology has been established under 38 C.F.R. § 3.303(b). See Clyburn v. West, 12 Vet. App. 296 (1999) (distinguishing the factual circumstances in Falzone v. Brown, 8 Vet. App. 398 (1995), and Hampton v. Gober, 10 Vet. App. 481 (1997)). II. Degenerative Disc and Joint Disease of the Lumbar Spine and the Cervical Spine. With respect to the evidence of record, the veteran's service medical records are negative for any complaints of or treatment for lumbar spine or cervical spine problems/disorders. In addition, the post-service medical evidence contains radiology reports from the East Orange VA Medical Center (VAMC), including a November 1997 radiology report revealing that the veteran had a history of pain in the lumbar area radiating down to the left leg, and that a CT scan of that area showed degenerative joint and disc disease at L4-5 and L5-S1. He also had facet joint disease at L4-5 and L5-S1 with bilateral neural foramina narrowing at these levels and vacuum disc at L5-S1. Moreover, a December 1997 radiology report reveals the veteran had a history of paresthesia of the hands and fingers, and that a CT scan of the cervical spine showed neural foraminal stenosis secondary to degenerative disease at C3-C7. After a review of the record, the Board finds that the veteran has not submitted medical evidence showing that his current degenerative disc and joint disorders of the lumbar spine and the cervical spine are related to his active service. Specifically, his service medical records are negative for any evidence of lumbar spine or cervical spine complaints or treatment/examination during his active service. As well, he has not provided any medical evidence suggesting that his current degenerative disc and joint disorders of the lumbar and cervical spine were incurred during his service. 38 U.S.C.A. § 1110 (West 1991). The veteran has failed to satisfy an essential element necessary to well ground his claims, which is the existence of a nexus between the currently claimed degenerative disc and joint disease of the lumbar spine and the cervical spine, and his period of service. A well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Furthermore, the Board finds that the evidence does not show the veteran's degenerative joint disease of the lumbar spine and/or the cervical spine became manifest to a compensable degree within a one year period of his discharge from service, and thus, he is unable to establish a well-grounded claim by the use of a legal presumption. See 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In fact, the veteran testified in December 1998 that he first became aware of the degenerative process in his spine the previous year when magnetic resonance imaging (MRI) testing was accomplished. Thus, in the absence of competent medical evidence to support the claims of service connection for degenerative disc and joint disease of the lumbar spine and the cervical spine, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded, and thus, the claims must be denied. 38 U.S.C.A. § 5107 (West 1991). III. Carcinoma of the Colon. The service medical records are negative for any indication that the veteran had carcinoma of the colon or other colon disorder prior to his service. Service medical records contains an October 1966 notation of treatment for several anal fissures. Notations of treatment for hemorrhoids are documented in service medical records dated in April 1967, May 1967 and in November 1967. As to the post-service medical evidence, medical records from the East Orange VAMC contain a February 1997 pathology report revealing that, upon initial colonoscopy for rectal bleeding, multinodular polypoid tissue was extracted from the veteran's colon. Such specimen was identified as a tubulovillous adenoma with focal severe atypia. In addition, an April 1997 VA examination report further discusses the veteran's colonoscopy with polyp excision in February 1997; and note that, at the time of the examination, the veteran reported a history of increased gaseousness in the stomach for many years with intermittent regurgitation of food into the throat, and a family history (his mother and his aunt) of cancer. The veteran's diagnoses included status post colonic polyp excise. Finally, a hospitalization summary from the East Orange VAMC reveals the veteran underwent an additional colonoscopy, and subsequent right hemicolectomy in January 1998. At that time, it was reported that a December 1997 colonoscopy had shown a lesion of the right proximal colon and that it was a polyp which was determined to be an adenocarcinoma, moderately differentiated. The January- February 1998 discharge summary indicates that on postoperative day six, the pathology report came back indicating well-differentiated adenocarcinoma limited to the mucosa and superficial submucosa with 0/5 lymph nodes positive. After a review of the record, the Board finds that the veteran has not submitted medical evidence showing that the claimed colon cancer is related to his active service. Specifically, the Board acknowledges that the veteran was treated for anal fissures and hemorrhoids during his active service. However, the medical evidence submitted does not show that his current colon disorder/symptomatology was incurred during service, is related to his in-service symptomatology, or is otherwise related to his active service. 38 U.S.C.A. § 1110 (West 1991). As such, the veteran has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a nexus between the currently claimed carcinoma of the colon and his period of service. A well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board acknowledges that, during the December 1998 appeal hearing at the RO, the veteran testified that he is entitled to service connection on the basis of aggravation. He asserts that he had bleeding on entrance into active duty and was treated for rectal bleeding and hemorrhoids in service. He argues that had proper testing been conducted in service, the polyp and cancer would have been detected at that time. In this regard, the Board finds the veteran has not submitted competent medical evidence supporting the conclusion that he had a disorder of the colon to include carcinoma of the colon prior to service. As noted, the veteran is presumed to have been in sound condition except for defects noted when examined and accepted for service, and there is no clear and unmistakable evidence that a colon disorder existed prior to the veteran's service such as would rebut this presumption. As such, the presumption of sound condition is applicable to the veteran's case and, absent clear and unmistakable evidence that the disability existed prior to service, the veteran's claim for service connection on an aggravation basis must be denied. See 38 U.S.C.A. § 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b) (1999). Therefore, in the absence of competent medical evidence to support the claim of service connection for carcinoma of the colon, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and thus, the claim must be denied. 38 U.S.C.A. § 5107 (West 1991). IV. Conclusion. In arriving at the above conclusions, the Board took into considerations the various statements by the veteran and his representative tending to link his current claimed disorders to his period of service. However, while the Board acknowledges the sincerity of these statements, the Board notes that the veteran and his representative are laypersons, and thus, not qualified to offer a medical opinion regarding the existence of a disability or as to the etiology of any such disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit, supra, in which the Court held that a veteran does not meet the burden of presenting evidence of a well-grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer such medical opinions). The Board notes that as the veteran has failed to meet his initial burden of submitting evidence which would well ground his claims of service connection, the VA is under no duty to assist the veteran in developing the facts pertinent to the claims. See Epps v. Gober, 126 F. 3d 1464, 1468 (1997). Giving the benefit of the doubt to a claimant does not relieve the claimant of carrying the burden of establishing a "well grounded" claim, and thus, there is nothing in the text of section 5107 to suggest that the VA has a duty to assist the claimant until he or she meets his or her burden of establishing a "well grounded" claim. See 38 U.S.C.A. § 5107(a) (West 1991); see also Epps, supra. The Board acknowledges that the claims file contains correspondence from the Social Security Administration (SSA). Further, the Board notes that at an RO hearing that was conducted in December 1998, the veteran made reference to his currently being in receipt of SSA disability benefits. While copies of these records are not in the claims file, a remand to secure them is unnecessary as their production would, at most, only serve to support the veteran's contention that he currently suffers from disabilities of the cervical and lumbar spine as well as disability of the colon (which the Board does not dispute), but would still not demonstrate that there is a nexus, or causal relationship, between any present disability and service. The veteran's claim has been denied because he has failed to provide competent medical evidence that there is a link between any diagnosed disorder and his military service. There is no indication that the SSA records contain information relevant to this issue or even that the SSA award was based on any of the claimed disabilities. Furthermore, the veteran has not identified the SSA records as pertinent to his claims and at the hearing indicated that he submitted current VA records to support his claim for SSA benefits. Therefore, the Board has determined that securing any SSA records would not add pertinent evidence, and the Board's duty to assist is not triggered because such a duty is "limited to (securing) specifically identified documents that, by their description would be facially relevant and material to the claim." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). As the claims file does not contain any indication that the veteran's SSA records, if obtained by the VA, would support a conclusion that the veteran's lumbar spine, cervical spine, and/or colon disorders are related to his period of active service, the VA is under no duty to obtain such records. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of the elements necessary to present well-grounded claims for service connection, and the reasons for which his claims failed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER Evidence of a well-grounded claim not having been submitted, service connection for degenerative disc and joint disease of the lumbar spine is denied. Evidence of a well-grounded claim not having been submitted, service connection for degenerative disc and joint disease of the cervical spine is denied. Evidence of a well-grounded claim not having been submitted, service connection for carcinoma of the colon is denied. S. L. KENNEDY Member, Board of Veterans' Appeals