Citation Nr: 0007813 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 96-47 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes. 2. Entitlement to service connection for right shoulder and lower back disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from June 1969 to June 1973. This matter arises before the Board of Veterans' Appeals (Board) from a July 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for the veteran's shoulder and back disabilities and diabetes. FINDINGS OF FACT 1. Medical evidence of a nexus between current diabetes and the veteran's period of service has not been presented. 2. Medical evidence of a nexus between post-service right shoulder and lower back disabilities has not been submitted. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for diabetes is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for right shoulder and back disabilities is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background Included in the veteran's service medical records is a report from an enlistment examination dated in February 1969 that is silent for any pertinent findings. Further, as noted in the veteran's service medical records, the veteran was involved in a car accident in August 1972 and complained of pain in the right side. The veteran reported at that time that he had pain when bending down and moving side to side. Otherwise, the veteran's service medical records are negative for relevant notations, complaints, or clinical findings. Post-service records include an emergency room record dated in October 1973 for treatment unrelated to the veteran's current claims. VA outpatient record dated in December 1984 reveals a history of diabetes times one year. VA examination report dated in December 1987 is of record at which time the veteran was diagnosed with diabetes, non-insulin dependent, not well controlled. Private medical records dated from 1993 to 1995 disclose ongoing treatment for diabetes, including a period of hospitalization in April 1993 for control of diabetes. VA x- ray study conducted in October 1995 of the right shoulder revealed some degenerative changes with no acute findings. A private emergency room visit in October 1995 disclosed complaints of right shoulder pain for a one-month period. In a private medical records dated from February to May 1996, the veteran complained of lower back pain and right shoulder trouble. Private medical records that extend from November 1996 to August 1997 include treatment for the veteran's diabetes. Also noted in records dated from February to May 1997 are complaints of low back pain and right shoulder pain. The physician diagnosed suspected tendonitis in the right shoulder. In April 1998, the veteran submitted a list of his medications. A private medical opinion dated in September 1998 discloses treatment of the veteran for diabetes since November 1996. The physician reported that the latest notes documented of the veteran's diabetes date to 1993 and include recitations of a "long history of type II diabetes." Further, the physician stated that the veteran's own rendition of the onset of diabetes is the best guess as to how far back it dated. The physician remarked that the veteran's file is not sufficiently complete so as to be able to give a definitive answer, but that it is entirely possible that the veteran's diabetes is coincident with his period of service. The veteran had a personal hearing in September 1998 at which time he testified that when he was in boot camp, he was always thirsty, experienced headaches, and was sore. Transcript (T.) at 1. Further, the veteran stated that during boot camp, he was unable to go to the clinic for treatment. (T.) at 1. Also, the veteran stated this his symptoms continued through active duty. (T.) at 2. The veteran also testified that he did not seek treatment because he thought it would affect an honorable discharge. (T.) at 2. With respect to the veteran's shoulder and back disabilities, the veteran stated that after the initial treatment in service, he continued to experience symptoms. (T.) at 2. When asked about his shoulder and back problems, the veteran stated that he was seen immediately following a vehicle accident in service and received minor treatment at that time. (T.) at 3. The veteran testified that his diabetes began sometime in the 1980s and that prior to that time, his sugar levels were indicative of borderline diabetes. (T.) at 4. He reported that his father died from complications of diabetes. (T.) at 4. Analysis The veteran in this case asserts that he is entitled to service connection for his diabetes and right shoulder and lower back disabilities. In well grounded cases, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service in the Armed Forces. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1999). Service connection may also be allowed on a presumptive basis for certain disabilities, including diabetes mellitus, if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, and hereinafter referred to as Court) requires that in order for a claim to be well grounded, there must be competent evidence of 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); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), aff'd sub nom. Epps v. Brown, 9 Vet. App. 341 (1996). In addition to the general standard set forth in Caluza, chronicity and continuity standards can also establish the requirements for a well grounded claim. See Savage v. Gober, 10 Vet. App. 488 (1997). The chronicity standard is established by competent evidence of the existence of a chronic disease in service or during an applicable presumption period; and present manifestations of the same chronic disease. The continuity standard is established by medical evidence of a current disability; evidence that a condition was noted in service or during a presumption period; evidence of post-service continuity of symptomatology; and medical, or in some circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, supra. In this veteran's case, with respect to his service connection claim for diabetes, the veteran has failed to establish a well grounded claim. Overall, the evidence of record as noted above does not substantiate that any post- service diabetes relates in the medical sense to the veteran's period of service. The veteran's service medical records are silent for any relevant clinical findings. Further, post-service, the veteran was first diagnosed with diabetes in about 1984, 11 years after his separation from service. This is confirmed in outpatient treatment records and the veteran's own testimony. Thus, in view of such evidence, the veteran's current diabetes does not relate to his period of service. Furthermore, in light of the 11-year span between discharge from service and the veteran's first diagnosis of diabetes, he is also not entitled to service connection on a presumptive basis. See supra, 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Furthermore, although a private medical doctor rendered an opinion in September 1998 to the effect that medical records of file include a long-standing past medical history of diabetes, there is nothing further to enhance such statement. The physician specifically stated that the "best guess" as to the onset of the veteran's diabetes is the veteran's own reported history. However, he recites a history that the veteran told him diabetes was diagnosed in 1973. Pursuant to LeShore v. Brown, 8 Vet. App. 406, 409 (1995), evidence that is merely recorded by a medical professional, unenhanced by any other medical documentation or comment otherwise, does not constitute competent medical evidence so as to satisfy the requirements for establishing a well grounded claim. Id. Moreover, as noted above, the veteran has reported diagnosis of diabetes in the 1980's during hearing testimony and the contemporaneously prepared medical records indicate a diagnosis in the 1980's. Moreover, that same physician in 1998 stated that it was entirely possible that the veteran's post-service disability related to his period of service. However, the Board made it clear in Tirpak v. Derwinski, 2 Vet. App. 609 (1992) that medical possibilities and unsupported medical opinions carry negligible probative weight. Additionally, the Court in Tirpak further commented that medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative in nature to establish the presence of the claimed disorder or the relationship thereto. Therefore, the Board concludes that the statement rendered by the physician is not sufficient to establish a well grounded claim. See also LeShore at 406. The Board acknowledges the veteran's allegations that his symptoms in service of frequent thirst, headaches, and fatigue were the beginning signs of what later was diagnosed as diabetes. If the issue is one that involves medical etiology (such as the nexus between current disability and an inservice injury or disease), medical diagnosis, or medical causation, the veteran must offer competent medical evidence sufficient to support a plausible claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Absent evidence that speaks otherwise, a lay person is not competent to make a medical diagnosis or to relate a medical disorder to an inservice injury or treatment. See Espiritu v. Derwinski, 2 Vet. App. 494, 494 (1992). In this veteran's case, he has not presented any evidence whatsoever of the requisite skills, training, and qualifications so as to render any of his opinions medically qualified. Thus, his allegations fall short of competent, medical opinions, and as such, do not support the establishment of a well grounded claim. Therefore, overall, the veteran's claim of entitlement to service connection for his post-service diabetes is not well grounded, and thus, must be denied. With respect to the veteran's assertions of entitlement to service connection for lower back and right shoulder disabilities, his claim also fails. Essentially, the veteran has not submitted competent evidence that any post-service back and shoulder disabilities relate medically to his period of service. While it is true that contained within the veteran's service medical records is an August 1972 clinical entry that reveals complaints of pain in the right side and when bending down attributable to a car accident in which the veteran had been involved, there is no competent evidence that such pain resulted in any residual disability of the shoulder or back. Absent any of the required statutory elements, the veteran fails to establish a well grounded claim. See Caluza v. Brown, 7 Vet. App. 498. Thus, in this respect, the veteran's claim fails. Moreover, the first evidence of right shoulder disability appears in an October 1995 x-ray of the right shoulder, which revealed some degenerative changes with no acute findings. Such evidence dates 22 years after the veteran's period of service. There are no intervening clinical data to substantiate ongoing symptomatology or treatment, and the findings at the time of the x-ray were not indicative of residual disability from the veteran's car accident many years earlier. Thus, in this regard as well, the veteran has not established a well grounded claim. Additionally, as to the veteran's low back pain, the record supports that during the inservice auto accident, the veteran complained of pain on bending. No residual back disability is noted as a result of the veteran's car accident. Further, the veteran's service medical records otherwise are silent as well in pertinent part. Moreover, in private medical records extending from February to May 1996, the veteran first complained of lower back pain. The assessment was chronic back pain. There is no clinical evidence prior to that time that relates to the veteran's lower back claim and no assessment is of record that supports disability coincident with service. Id. Therefore, in light of the absence of medical evidence to establish a medical nexus between any post-service lower back pain and the veteran's period of service, the veteran fails to establish a well grounded claim. Id. Although the veteran maintains that his right shoulder and back disabilities date back to the incident in service, he has not presented competent clinical evidence to substantiate such assertions. The veteran asserts that he was repeatedly hit with a weapon-type stick while in boot camp and that on several occasions, it was necessary to seek medical intervention. As noted above, the veteran has not presented any information to the effect that he is medically qualified so as to render his statements clinically competent. See supra Espiritu at 492. Thus, while we may presume that certain statements for the purpose of well grounding a claim are acceptable, see King v. Brown, 5 Vet. App. 19, 21 (1993), where the facts asserted are beyond the competence of the speaker, they do not support a well grounded claim. Id. Therefore, in light of the law, the veteran's allegations are not considered competent medical evidence for the purpose of establishing a well grounded claim. Espiritu at 492. In this case, in view of the veteran's failure to submit competent evidence that satisfies the aforementioned requirements, the Board must conclude that the claims are not well grounded and, therefore, must be denied. See Edenfield v. Brown, 8 Vet. App. 384, 390 (1995). Further, in this regard, the Board stresses that the duty to assist the veteran is only triggered upon the submission of a well grounded claim. As the Board concludes that the claims of service connection are not well grounded, the duty to assist has not been triggered. Godwin v. Derwinski, 1 Vet. App. 419 (1991). ORDER Entitlement to service connection for diabetes is denied. Entitlement to service connection for right shoulder and lower back disabilities is denied. V. L. Jordan Member, Board of Veterans' Appeals