Citation Nr: 0000661 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 97-26 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for a bilateral foot condition. 3. Entitlement to service connection for a back condition, to include dextroscoliosis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The appellant had active military service from December 1970 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the above claims. In October 1999, a videoconference hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). FINDINGS OF FACT 1. There is no medical evidence showing that the appellant currently has a chronic sinus disorder. 2. The appellant currently has flat feet and back disorders variously diagnosed as chronic lumbosacral strain and degenerative joint disease. 3. The appellant's service medical records showed evaluation for foot and back pain, with diagnosis of low back syndrome. 4. There is no evidence of incurrence of degenerative changes of the lumbar spine during service or within the year after the appellant's separation from service. 5. There is no medical evidence of a nexus, or link, between the claimed foot and back conditions and any disease or injury during service. 6. The appellant's claims for service connection are not plausible. CONCLUSION OF LAW The appellant has not presented well-grounded claims for service connection for sinusitis, a bilateral foot condition, and a back condition, including dextroscoliosis, and there is no statutory duty to assist him in developing facts pertinent to these claims. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background In May 1996, the appellant filed claims for service connection for sinusitis, foot problems, and mild dextroscoliosis. He stated that he had problems with these conditions during service, and he had been treated for these conditions at the VA Medical Centers in Tuskegee, Dublin, and Decatur. The appellant's service medical records showed treatment for sinus problems between March and June 1971. It was noted that he had chronic sinus drainage. In August 1971, he complained of sinus pain and stated that this was due to excessive exposure to heat while cooking. The examiner doubted that the appellant had sinusitis. In August 1971, the appellant complained of dryness around the toe and heel areas of the feet, and there was some athlete's foot. Also in August 1971, he complained of right-sided back pain of one week's duration. He also had increased urinary frequency. He complained of low back pain after lifting or moving and indicated that he lifted many heavy objects each day. Examination showed mild dextroscoliosis. There were no muscle spasms or tenderness. There was full range of spinal motion, and straight leg raising was negative. The assessment was low back syndrome. The appellant was provided muscle relaxants and told to use heat and a bed support. In October 1971, he complained of burning pain in both feet. Examination showed no objective findings. Although it was noted that he was referred to orthopedics for further evaluation, there is no record that this was conducted. On the Report of Medical History completed in November 1972 in conjunction with his separation examination, the appellant denied having any bone or joint deformities, lameness, or recurrent back pain. He indicated that he did not know if he had sinusitis and indicated that he did have foot trouble. It was noted that he frequently had mild colds and had been hospitalized for strep throat during service. He reported experiencing foot pain during basic training without sequelae. All clinical evaluations were normal. At the time the appellant filed his claims for service connection, his medical records from the VA Medical Centers in Augusta, Tuskegee, and Dublin dating from September 1988 to April 1995 were associated with the claims file. These records showed no complaints of or treatment for sinusitis or any foot or back disorders. During the October to November 1988 hospitalization, it was noted that he had acute nasal discharge, and a diagnosis of acute rhinitis was rendered. The RO obtained the appellant's medical records from the VA Medical Centers in Dublin, Tuskegee, and Decatur dating from December 1993 to June 1996. Although these records showed no complaints of or treatment for any foot disorders, it was noted in June 1995 that examination showed flat feet. During that same examination, the appellant complained of having muscle spasms in the back. During hospitalization in November 1995, chest x-rays showed mild scoliosis in the mid to lower thoracic spine. During hospitalization between December 1995 and February 1996, computerized tomography (CT) of the lumbar spine showed moderate central disc herniation at L4-5 with a mild posterior central disc bulging at L5-S1. Magnetic resonance imaging (MRI) was also done, which was normal. Discharge diagnoses included chronic low back pain. A rehabilitation consultation report dated in April 1996 indicated that the appellant reported a history of "falls" and complained of chronic low back pain. The assessment was falls secondary to unstable spine. In May 1996, the appellant stated that he needed something for his sinuses. Examination showed that his throat was clear, and there were no signs of sinusitis. The examiner's assessments included rule-out sinusitis. In May 1996, the appellant complained of low back pain with occasional giving way of the left leg. He reported a history of injuring his back. Examination showed mild scoliosis of the lower lumbar region around L1-4. There were paraspinal muscle spasms on the left with limitation of motion. It was noted that a CT scan had shown herniated nucleus pulposus at L4-5. Upon VA physical examination in March 1998, the appellant stated that his back "went out on him" while he was stationed in Germany. He stated that a doctor had told him that he had lumbosacral strain. He was treated with medication, but his back pain did not improve. He stated that he was in prison after service between 1974 and 1979, and he was treated there for complaints of chronic low back pain, with diagnosis of chronic lumbosacral strain. Examination of the appellant's sinuses showed that the mucosa were slightly red and swollen. There was clear discharge, but the sinuses were not tender. He had full range of motion of all joints without any swelling, erythema, heat, or deformity. His spine was straight without any spasms. He complained of pain on the slightest movement. Chest x-ray showed mild dextroscoliosis of the thoracic spine. X-rays of the lumbosacral spine showed minimal nonspecific side bending to the right of midline and mild degenerative changes at multiple levels. Diagnoses included chronic lumbosacral strain with degenerative disc disease with normal examination but positive radiographic findings of degenerative joint disease. In his substantive appeal, the appellant maintained that he was treated during service for the claimed conditions and that he treated himself after service. He stated that when imprisoned, he was treated for his back, sinuses, and foot problems. In October 1999, the appellant had a videoconference hearing. He stated that he was treated for sinusitis during service and then while in prison after service. He indicated that he had tried to obtain his treatment records but was told that they had been destroyed. He stated that he was diagnosed with sinusitis while in prison and treated with medications. He stated that he had headaches and occasional sinus discharge due to his sinus problems and that these symptoms had continued since his period of military service. He indicated that he had been treated for his sinuses at the VA Medical Centers in Dublin and Tuskegee 2-3 years earlier. He stated that he was also treated at the VA Medical Center in Decatur in 1980, but he did not know what he was treated for at that time. Regarding his foot claim, the appellant testified that he woke up one day during service, and his left foot was swollen and painful. He stated that a friend had to cut off his boot, and a doctor had said something to him about frostbite. He stated that the weather was freezing. He denied any other foot injuries and did not recall having any problems during basic training. He denied having any further problems with his feet after the alleged incident and denied having any problems with his feet currently. Regarding his back claim, the appellant stated that he was working in his occupational specialty as a cook during service when he "hit the floor." He stated that he had back pain, and a doctor told him something about spasms. He stated that he fell again four months later. After service, he fell on the job and could not walk. He then fell at his next job in Georgia and was "let go" because of his back condition. He did not receive any treatment; he merely applied heat like the doctor had during service. He stated that he still fell, and a VA therapist had told him that spasms would not cause him to fall. He argued that his back was "moving" because the CT scan had shown bulging discs, but the MRI was normal. He stated that he continued to fall several times per year. II. Legal Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Generally, 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). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy, 1 Vet. App. at 81. In general, the veteran's evidentiary assertions are accepted as true for the purpose of determining whether a well-grounded claim has been submitted. King v. Brown, 5 Vet. App. 19, 21 (1993). A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd 78 F.3d 604 (Fed.Cir. 1996) (table). This third element may be established by the use of statutory presumptions. Caluza, 7 Vet. App. at 506. Truthfulness of the evidence is presumed in determining whether a claim is well grounded. Id. at 504. The second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Brewer v. West, 11 Vet. App. 228, 231 (1998); see also Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease. Brewer, 11 Vet. App. at 231. Section 3.303(b) provides an alternative method of demonstrating entitlement to service connection. Rose v. West, 11 Vet. App. 169, 171- 172 (citing Savage, 10 Vet. App. at 495-6 (section 3.303(b) is provision that veteran "may utilize" because it provides "a substitute way" of proving service connection)). Service connection may also be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110, 1112, 1131 and 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a) (1999). Service connection for arthritis, including degenerative joint disease of the lumbar spine, may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307 and 3.309 (1999). A. Sinusitis The medical evidence does not warrant service connection for this condition because there is no evidence showing a medical diagnosis of sinusitis, or any other chronic sinus disorder, either during service or since. No diagnosis of sinusitis has ever been rendered according to the evidence of record. During service, it was noted that it was doubtful that the appellant had sinusitis, and he was only treated for sinus "problems" without diagnosis of a chronic condition. Since service, the appellant complained of sinus problems on only one occasion, and the diagnosis was rule-out sinusitis. "Rule-out" is not a definitive diagnosis. Rather, it indicates that sinusitis may or may not be present, but the examination showed no signs of sinusitis so a diagnosis could not be rendered. The appellant's complaints of headaches and sinus discharge are symptoms only, and no diagnosis is shown in the current medical evidence to account for those symptoms. Since the medical evidence does not show a current disability due to sinusitis, the appellant's claim for service connection is not well grounded. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza, 7 Vet. App. at 505; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). B. Bilateral foot condition and back condition The appellant currently has various diagnosed back disorders such as chronic lumbosacral strain and degenerative joint disease. There is also an indication in the current medical evidence that he has flat feet, which is a foot disorder, although not the frostbite-related disorder that the appellant is claiming. His service medical records showed complaints of back and foot pain. Therefore, the first two elements of a well-grounded claim have been satisfied. However, the appellant has not satisfied the third element of a well-grounded claim for service connection. There is no medical evidence of a nexus, or link, between any inservice disease or injury and the current foot or back conditions. There is no evidence of incurrence of a chronic foot condition during service. The appellant's separation examination showed that his musculoskeletal system and extremities were normal upon clinical evaluation. Although he reported having had foot trouble, he indicated that this was during basic training with no recurrence since. In fact, despite the current finding of flat feet, the appellant testified that he has had no continued foot pain or any foot disability since the alleged inservice weather-related injury. The post-service medical evidence shows no complaints by the appellant of any foot problems. The post- service medical evidence shows initial diagnosis of a foot disorder (i.e., flat feet) more than twenty years after the appellant's separation from service. At no time has a medical professional indicated that the appellant's flat feet are in any manner related to his military service or that they began during service. There is also no evidence of incurrence of a chronic back condition during service. The appellant's separation examination showed that his spine and musculoskeletal system were normal upon clinical evaluation. He denied having recurrent back pain upon his separation from service. This means that any back pain he experienced due to the alleged falls/injuries during service was acute and transitory without chronic residuals. The medical evidence does not show further treatment for or diagnosis of a back disorder until more than twenty years after the appellant's separation from service. According to his testimony, he incurred several back injuries in falls after his period of service. There is no medical evidence showing that the appellant had a chronic back condition prior to 1995-96. The record is also devoid of any medical evidence showing that any diagnosed back disorder is related to his active service in any manner or that it began during service. A finding of dextroscoliosis was shown in the appellant's service medical records, and current x-rays show the presence of dextroscoliosis. However, the first post-service x-rays showing such findings were also more than twenty years after the appellant's separation from service. Dextroscoliosis is not a chronic disease, see 38 C.F.R. §§ 3.307 and 3.309, and there is no evidence from which the Board could conclude that the current dextroscoliosis is related to the inservice finding, or that dextroscoliosis has resulted in any disability. No medical professional has indicated that the appellant's current dextroscoliosis is related to the inservice finding, or that dextroscoliosis in and of itself is a disabling condition, and the Board does not have the medical expertise to conclude that such a relationship is plausible. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board may not base a decision on its own unsubstantiated medical conclusions, but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises). There is no such evidence in this case. Moreover, the appellant is not entitled to presumptive service connection for any degenerative disease of the lumbar spine. The appellant does not contend nor does the medical evidence show that degenerative changes in the lumbar spine were manifested in the year following his separation from service. The medical evidence shows that he was first found to have degenerative disease of the lumbar spine more than twenty years after his separation from active service. C. Conclusion During his 1999 hearing, the appellant testified that he has experienced sinus-related problems and chronic back pain since service. He is certainly competent to report experiencing such symptoms. Even accepting his complaints as representative of continuity of symptomatology, there is no competent medical opinion of record showing that he currently has a diagnosed sinus disorder, or associating any of the current back disorders with any prior symptoms of back pain. Cf. Savage, 10 Vet. App. at 497. As indicated above, he does not allege continuity of symptomatology concerning his feet. The only evidence linking the claimed conditions to the appellant's period of service consists of his current statements. Even accepting his statements as true, he cannot meet his initial burden under 38 U.S.C.A. § 5107(a) by simply presenting his own opinion. He does not have the medical expertise to render a probative opinion as to medical causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the Board concludes that the appellant's claims for service connection for sinusitis, a bilateral foot condition, and a back condition, including dextroscoliosis, are not well grounded. Until he establishes a well-grounded claim, VA has no duty to assist him in developing facts pertinent to the claim, including providing him a medical examination at VA expense. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.326(a) (1999) (VA examination will be authorized where there is a well-grounded claim for compensation); see Morton v. West, 12 Vet. App. 477 (1999) (VA cannot assist a claimant in developing a claim that is not well grounded). When a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). VA has no outstanding duty in this case to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits. See 38 U.S.C.A. § 5103(a) (West 1991). There is no indication of any medical records that might well ground any of these claims. The appellant has alleged that he received treatment for the claimed conditions after service when he was in prison, but he also stated that he tried to obtain these records, but they had been destroyed. Regardless, records for treatment in the late 1970s would not well ground these claims. Such records would fail to show that the appellant currently has a chronic sinus disorder, and he has not alleged that these records would contain any medical opinions associating the claimed foot and/or back conditions with his period of service. It is therefore unnecessary that any attempts be made to obtain additional treatment records. The presentation of a well-grounded claim is a threshold issue. Therefore, since the appellant has failed to present competent medical evidence that his claims are plausible, the claims for service connection must be denied as not well grounded. Dean v. Brown, 8 Vet. App. 449 (1995); Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of these claims, because such additional development would be futile. See Murphy, 1 Vet. App. 78. ORDER Entitlement to service connection for sinusitis, a bilateral foot condition, and a back condition, including dextroscoliosis, is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals