BVA9504763 DOCKET NO. 91-48 047 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for residuals of a fracture of the sternum. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran is certified by the United States Coast Guard as having served on active duty for purposes of Department of Veterans Affairs (VA) benefits from April 1944 to August 1945. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 1990 rating decision of VA Regional Office (RO) in Newark, New Jersey. In October 1992 the Board remanded the case for further development. The requested development has been completed and the case has been returned to the Board for further appellate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends he injured his back when he slid down stairs while passing shells aboard ship during an airstrike. The veteran further contends that he is entitled to service connection for residuals of an injury to his sternum. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for residuals of a back injury. It is further the decision of the Board that the veteran's claim for service connection for residuals of a fracture of the sternum is not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Residuals of a back injury were initially demonstrated many years following service and are not shown to be related to service. 3. The claim for service connection for residuals of a fracture of the sternum is not plausible. CONCLUSIONS OF LAW 1. Residuals of a back injury were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 2. The veteran's claim for service connection for residuals of a fracture of the sternum is not well-grounded . 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim for service connection for residuals of a back injury is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed with respect to this issue and that no further assistance to the veteran is required to comply with the duty to assist mandated by statute. Entitlement to service connection may be granted for disability resulting from disease or injury in or aggravated by service. 38 U.S.C.A. § 1110. Additionally, service connection may be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To further ascertain whether service connection may be established for a disability, VA must determine whether the evidence supports the claim or is in relative equipose, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Despite several attempts, VA has been unable to locate medical records for the veteran during his period of certified active duty. The earliest medical treatment report of record, dated in February 1950, shows that the veteran gave a history of having tripped over a ladder and fallen on his lower back aboard ship in November 1949. He again refers to this incident in treatment records dated in March 1950 for removal of pilonidal cyst and May 1951. The May 1951 report shows a diagnosis of lumbar myalgia. An August 1951 discharge summary from a U.S. Public Health Service hospital again recounts the circumstances of the November 1949 accident. The report further notes that the veteran had been unsuccessfully given conservative therapy for a long period of time and underwent a coccygectomy. The August 1951 operation report shows that an examination of the coccyx revealed what was believed to be an old incompletely healed fracture obliquely across the second coccygeal segment. An accompanying pathological report shows a brief clinical history of coccydynia of seven years duration following a fall. In an April 1955 medical report, the veteran gave a history of having slipped and fallen down stairs, striking his back against the bulkhead of a ship in November 1954. The veteran continued to receive treatment for low back pain, diagnosed as chronic back strain in a July 1955 medical record. A September 1961 medical report shows that the veteran sustained back pain as a result of a fall aboard ship in February 1961. Treatment records to October 1965 show that the veteran continued to complain of low back pain. In an August 1972 neurosurgical consultation report, the examiner noted that the veteran had back pain since 1945 when he slipped while aboard a vessel. That same month, the veteran underwent a decompressive laminectomy at L4-L5 with a diskectomy at the L4-L5 interspace. At his May 1990 personal hearing, the veteran testified that he first injured his back while aboard the WALTER HINES PAGE when he fell down stairs and scraped his back. The veteran did not seek treatment immediately because the ship was under attack. He testified that he was later given "pills" for pain. He stated that he first sought treatment at a merchant mariner clinic in 1945, but was told that the physician could find nothing wrong with him and was given medication for pain. He returned for treatment in 1947 and 1948 and was given heat treatments. He was told that his condition was chronic. The veteran then went to a United States Public Health Service hospital and received a brace for his back which eased the pain. He stated that he wore the brace ever since it was initially given to him. The veteran further testified that an August 1951 operation that removed his coccyx was the result of his service injury and that there were no intervening injuries to his back. A December 1990 hospital report shows that the veteran gave a history of having been treated since 1945 after he injured his back in 1944. The report further shows that the veteran underwent back surgeries in October 1972 and in 1984. The examiner noted that the veteran's back condition was related to his original 1944 injury "by his record." An altered copy of the veteran's August 1951 discharge summary report was submitted which shows that he fell in August 1944 rather than November 1949. The subsequent altered report also added that examination of the coccyx at the time of the operation revealed what was felt to be an old incompletely healed fracture obliquely across the second coccygeal segment and further added to the diagnosis "fracture of coccyx with delayed union." In a letter received in August 1994, Public Health Service Data Center confirmed that the narrative summary had been altered. As fact-finder in the veteran's case, we are required to weigh and analyze all the evidence of record, v. Sanden v. Derwinski, 2 Vet.App. 97 (1992), and to explain with sufficient clarity the reasons for our decision. Sammarco v. Derwinski, 1 Vet.App. 111 (1991). Our consideration of this case obliges us to assess the credibility of the veteran's statements, both oral and written, rendered pursuant to his appeal. O'Hare v. Derwinski, 1 Vet.App. 365 (1991); Ferguson v. Derwinski, 1 Vet.App. 428 (1991). But we are not required to accept every assertion made by the veteran, especially when not corroborated by the other evidence of record. Wood v. Derwinski, 1 Vet.App. 190 (1991); Smith v. Derwinski, 2 Vet.App. 137 (1992). Although the veteran attributes his current residuals of a back injury to his certified service, the Board finds little probative evidence to support a grant of service connection for this claim. The preponderance of the objective evidence demonstrates that residuals of a back injury began in 1950, several years after the veteran's certified service and after a documented injury in November 1949. Indeed, most of the earliest available treatment records show that the veteran recounted only the November 1949 back injury and, later treatment records show two subsequent injuries in November 1954 and February 1961. However, the August 1951 pathological report does show a seven year history of back pain following injury, and the veteran's May 1990 testimony also alleges a 1944 injury. Further, the August 1972 neurological consultation reports notes that the veteran had back pain since 1945 and the December 1990 medical report gives the veteran's subjective history of an injury incurred in service. With the exception of the August 1951 pathology report, the Board finds these reports to be based on the veteran's subjective history, given many years after his certified service, and of lesser probative value than earlier, more contemporaneous medical treatment records. While the August 1951 pathology report does indicate the possibility of a 1944 injury, the earlier and contemporaneous objective medical evidence indicates a November 1949 injury to be the source of the veteran's disability. As to the submitted altered August 1951 discharge summary, the Board finds that it is not credible. In summary, the Board concludes that a preponderance of the evidence is against the claim that the veteran's current back disability can be associated with the veteran's period of certified service or any incident therein. The benefit of the doubt doctrine is not for application in this case, as the negative evidence and positive evidence are not in equipose. 38 U.S.C.A. § 5107(b). As to the veteran's claim for service connection for residuals of a fracture of the sternum, the threshold question to be answered is whether he has presented evidence of a well-grounded claim. A well-grounded claim is one which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). While the veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). After reviewing the veteran's claims file, the Board notes that there are no medical records that show a diagnosis, complaint, finding or treatment pertaining to a fractured sternum or residuals thereof. Further, at his May 1990 personal hearing, the veteran testified that the incident that caused his sternum fracture occurred in 1953, several years after his active duty service. Therefore, the Board finds that the veteran's claim for service connection for residuals of a fracture of the sternum is not well grounded. Although the Board has considered and denied this aspect of the veteran's appeal on a ground different from that of the RO, which denied the claim on the merits, the veteran has not been prejudiced by the Board's decision. This is because, in assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claims in fact warranted under the circumstances. See Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the veteran's claim for service connection for residuals of a fractured sternum is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). ORDER The claim for service connection for residuals of a back injury is denied. The claim for service connection for residuals of a fractured sternum is dismissed. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.