Citation Nr: 0001606 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 99-13 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The appellant served on active duty from May 1977 to May 1980, and again from January 1981 to December 1982. The case comes before the Board of Veterans' Appeals (the Board) on appeal from a decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before a Member of the Board sitting in Montgomery, Alabama, in October 1999. The undersigned Member was designated by the Chairman of the Board to conduct such a hearing. A transcript of the hearing testimony has been associated with the claims file. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appellant's appeal. 2. The appellant has presented no competent medical evidence showing a nexus between the diagnosis of myofascial back pain, made over fifteen years after service, and any incident or event of his military service, including his treatment in May 1982 for back spasms, or any other in-service occurrence or event. CONCLUSION OF LAW The claim of entitlement to service connection for a low back disorder is not well grounded and there is no further statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5107(a), a VA claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim of entitlement to service connection is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 73 (1995). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is generally required for the claim to be well grounded. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Establishing service connection requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). The third Caluza element can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). However, in the instant case, there is no evidence of continuity of symptomatology, as there is no record of treatment or diagnosis until approximately 15 years after service. The evidence submitted in support of a claim must be accepted as true for the purposes of determining whether the claim is well grounded except when the evidentiary assertion is "inherently incredible" or when the fact asserted is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet. App. 19, 21 (1993). As stated above, the record reflects that the appellant served on active duty from May 1977 to May 1980, and again from January 1981 to December 1982. The RO was unable to obtain copies of the appellant's service records for the period May 1977 to May 1980. Nonetheless, under Wade v. West, 11 Vet. App. 302 (1998), missing service medical records are not necessary where the nexus requirement has not been satisfied, as the Board concludes in this case. The appellant's available service records reveal that he was treated for muscle spasm in the lower middle back in May 1982. The assessment was of a pulled muscle. He was given muscle relaxant medication for his pain. The appellant testified that he was only told that he had back spasm, but was not diagnosed with any particular type of back injury while in service. Post service medical records are negative for a back disorder until November 1998, when the appellant underwent a VA spine examination. The examination showed that the appellant's gait pattern with a straight cane was stable and his standing posture was within normal limits. Cervical, thoracic and lumbar spinal areas were within normal limits except for mild lumbar curve reversal. Range of motion of the back showed forward flexion possible to 110 degrees, extension of 15 degrees, and lateral bending of 15 degrees bilaterally. No definite radiation was noted. An x-ray indicated that the lumbar spine was normal and that there was a slight loss of statute of the bodies of T7-8 in the thoracic spine. Paravertebral soft tissue was within normal limits. The appellant was diagnosed with low back chronic recurrent dominant myofascial pain syndrome. The examining physician, however, did not offer any opinion regarding the etiology of this disorder or relate it in any way to military service. Although the physician did transcribe the appellant's medical history, medical reports which transcribe the appellant's contentions without enhancement cannot be considered medical evidence. See LeShore v. Brown, 8 Vet. App. 406 (1995). Considering the foregoing facts, the Board concludes that the appellant has not submitted evidence sufficient to render his claim of service connection for a low back disorder well grounded. Caluza, 7 Vet. App. at 498. The first element of a well grounded claim has been established - the appellant has demonstrated that he currently suffers from myofascial back pain. However, there is no competent medical evidence which provides a nexus, as reflected by medical diagnosis or opinion, between the appellant's back pain complained of approximately 15 years after service and the back spasms he experienced during service. See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996) (with respect to medical nexus for well groundedness, the claimant must supply objective medical evidence to support claim); cf. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (presentation of well-grounded claim triggers necessity to seek medical evidence to verify or not claim provided medical evidence already of record supports claim on the nexus question). The Board has considered the appellant's contentions on appeal that his current low back disorder stems from a fall in service; however, this evidence alone cannot meet the burden imposed by 38 U.S.C.A. § 5107(a) with respect to the existence of a disability and a relationship between that disability and his service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The appellant's lay assertions will not support a finding on medical questions requiring special expertise or knowledge, such as diagnosis or causation of a disease. Id. at 494-95. Moreover, it is not shown that the appellant is competent himself based on medical training and professional status to render a medical diagnosis or opinion. On the basis of the above findings, the Board can identify no basis in the record that would make the appellant's claim of service connection plausible or possible. 38 U.S.C.A. § 5107(a); see also Grottveit, 5 Vet. App. at 92; Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the veteran has not met this burden, the VA has no further duty to assist him in developing facts pertinent to the claim, including no duty to obtain a medical examination or opinion. 38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (where the claim was not well grounded, VA was under no duty to provide the veteran with an examination). VA is obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of the kind of evidence needed to well ground a claim for service connection. Robinette, 8 Vet. App. 69 (1995). However, there is nothing in the record which suggests the existence of any additional evidence that might render plausible this claim that is currently not well grounded on the basis of a medical nexus. Further, in documents provided from the RO the veteran has been advised of the type of information he needed to submit to well ground the claim. Accordingly, the Board must deny the appellant's claim of service connection for a low back disorder as not well grounded. ORDER As the appellant has failed to submit a well grounded claim, entitlement to service connection for a low back disorder is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals