Citation Nr: 0001681 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 97-34 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: Marine Corps League WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from August 1948 to August 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a May 1999, rating decision, the RO granted service connection for status post cold injury of the veteran's hands and feet, effective January 1998. Later in May 1999, the veteran's representative submitted an August 1998 radiology report which reflected minimal osteoarthritic changes and demineralization of the hands, with minimal soft tissue swelling. The veteran's representative requested that "this report be considered and another decision be rendered." The Board finds that the representative's request, when viewed in the context of the newly received medical evidence, constitutes a claim for a higher initial rating for status post cold injury of the hands. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The claim for service connection for back disability is not plausible. CONCLUSION OF LAW The claim for service connection for back disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran contends that his current back disability is a result of inservice cold exposure and repeated lifting of heavy objects such as 55-gallon drums. Service medical records, to include the veteran's July 1952 service discharge examination report, are negative for complaints, treatment or diagnosis of back disability. Private medical records dated in May 1976 reflect that the veteran was diagnosed as having rheumatoid spondylitis. A June 1976 letter from Michael J. Geoghegan, M.D., to another private physician states that the veteran had been followed by the writing physician's office since 1957. According to the letter, when first seen, the veteran complained of an increasing amount of pain in the lower back. After X-rays and examination, the diagnosis was Marie- Strumpell or rheumatoid spondylitis. The veteran was referred to another physician to rule out cardiovascular pathology due to Marie-Strumpell disease. Private medical records of treatment of the veteran's cervical spine complaints by M. Weckstein, M.D., in September 1978, reflect a diagnosis of minimal hypertrophic changes of the cervical vertebrae, with narrowing of the disc space between C5 and C6, and encroachment upon the intervertebral foramina on the right side at the level of C5 and C6. A private chest X-ray in May 1995, compared with films taken in November 1993, reflected that spondylitic degenerative changes of the spine were stable. During a November 1996 VA orthopedic examination, the veteran indicated that he felt that part of his back problem was due to having handled 55-gallon drums during service. After review of the veteran's medical history and physical examination of the veteran, the examiner's impressions were no residual changes from frostbite found; ankylosing spondylitis; spondylolisthesis of L6 on S1 (the examiner found six lumbar vertebrae); degenerative arthritis of the cervical spine; mild obstructive pulmonary disease; bilateral calcaneal spurs; possible destructive lesion of L6; and mild macrocytic anemia. VA medical records of treatment from January 1997 to May 1998 reflect complaints of back pain. Records of treatment dated in February 1997 and May 1998 include diagnoses of ankylosing spondylitis and spondylitis, respectively. During the veteran's July 1998 RO hearing, the veteran testified that he unloaded boxes of fuel at a narrow track railroad during service. He said that he was exposed to cold, resulting in cold injuries, during combat in Korea. The veteran testified that he handled 55-gallon drums of fuel oil, gasoline and other substances during service. He said that at times he would have to handle containers weighing up to 350 pounds by himself. He reported that he had fusion of the lumbosacral area and that he had been given the option of wearing a corset, surgery, or just living with his back disability. In the long run, he chose the last option. He said that during his time in service, he never had back problems which required him to go to sick bay. During an August 1998 VA examination, the veteran complained of severe back pain in the lower back and left leg since 1953. After a review of the veteran's medical history and physical examination of the veteran, the pertinent diagnosis was ankylosing spondylitis affecting the dorsal spine as well as fusion of the sacroiliac joint. There was no evidence of spondylolisthesis in the X-rays. In the examiner's opinion, the veteran's back condition was not secondary to inservice cold injury. The diagnosed condition of the spine was ankylosing spondylitis, which was noted to be a variant of connective tissue disorder. Analysis The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation that a disorder is service connected is not sufficient; the veteran must submit medical evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). If the veteran 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. 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). In order for a claim for service connection to be well- grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. at 93. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Id. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131. Regulations also provide that 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service, or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. Service connection for arthritis is presumed in cases where such disability is shown to an extent of 10 percent or more within one year after discharge from service. 38 C.F.R. § 3.307, 3.309 (1999). Section 1154(b) of title 38, United States Code, provides that in the case of any veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incidence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Collette v. Brown, 83 F.3d 389 (Fed. Cir. 1996). However, even after incurrence of such disease or injury has been established, medical evidence of a current disability and of a nexus between the inservice disease or injury and the current disability is required in order to well-ground a claim for service connection. See Kessel v. West, 13 Vet. App. 9 (1999) (en banc). In addition to the medical evidence discussed above, the Board has examined all other medical evidence of record, none of which is probative of a nexus between a disease or injury incurred or aggravated during service and the veteran's current back disability. The Board accepts as credible the veteran's assertions that he received cold injuries in combat, see 38 U.S.C.A. § 1154(b), and that he engaged in heavy lifting during service. In the present case, there is medical evidence to show that the veteran had back disability as of 1957, but no earlier. The Board acknowledges the assertions of the veteran and his representative that the veteran's current back disability is a result of inservice cold injury and lifting of 55-gallon drums. A competent medical opinion to this effect would be required to well ground the veteran's claim. The veteran and his representative, as a lay persons, are not competent to provide medical opinions; accordingly, their assertions as to medical diagnosis or causation cannot constitute evidence of a well-grounded claim. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit. The Board further acknowledges the history as conveyed by the veteran during his August 1998 VA examination of severe back pain in the lower back and left leg since 1953. The Board finds that this unannotated history is not sufficient to establish that spondylitis or arthritis of the back, neither of which is susceptible to lay observation, was present to a degree of 10 percent disabling or more within one year of the veteran's August 1952 discharge from service. Again, a medical opinion to this effect would be required to well ground the veteran's claim. There is thus no medical evidence of a link between the veteran's current back disability and a disease or injury (such as a cold injury or a heavy lifting injury) incurred in service. Nor is there medical evidence to show that spondylitis or arthritis of the back was present to a degree of 10 percent disabling or more within one year after discharge from service. Accordingly, the claim for service connection for back disability must be denied as not well grounded. Caluza, Epps. ORDER Service connection for back disability is denied. WILLIAM W. BERG Acting Member, Board of Veterans' Appeals