Citation Nr: 0002558 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 94-28 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for varices of the left thigh. 3. Entitlement to service connection for gum disease to include bleeding gums. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from January 1990 to June 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 1994 rating decision by the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for a left knee disorder and denied service connection for a right knee disability, a back disability, varices of the left thigh, bleeding gums, and syphilis. A notice of disagreement as to the issue of the veteran's dissatisfaction with the initial rating assigned following the grant of service connection for left knee disability as well as the issues of service connection for a right knee disability, a back disability, varices of the left thigh, and bleeding gums was received in February 1994. The veteran did not initiate an appeal as to the issue of entitlement to service connection for syphilis. A Statement of the Case was issued in May 1994. In July 1994, the veteran perfected his appeal by submitting a substantive appeal as to the issues of service connection for a right knee disability, a back disability, varices of the left thigh, and bleeding gums; he did not perfect his appeal as to the issue of the veteran's dissatisfaction with the initial rating assigned following the grant of service connection for left knee disability. In January 1996, the veteran raised the issue of entitlement to an increased rating for left knee disability. In addition, he later raised the issue of entitlement to disability benefits based on Persian Gulf War service. The Board notes that the Persian Gulf claim is separate and distinct for the direct service connection claims listed on the front page of this decision. It appears that no adjudicatory action was taken with respect to those claim because of the veteran's failure to report for numerous VA examinations; however, the RO must adjudicate these matters in light of the evidence of record under 38 C.F.R. § 3.655. As such, the Board refers these matters to the RO for appropriate action. FINDINGS OF FACT 1. The veteran does not currently have a back disability. 2. There is no competent medical evidence of a nexus between the veteran's currently diagnosed varices of the left thigh and service. 3. There is no competent medical evidence of a nexus between the veteran's currently diagnosed slight gingival overgrowth in the area of crowded lower arter in teeth and service; moreover, gum disease is considered a noncompensable condition and service connection for gum disease for compensation purposes is precluded by VA regulations. CONCLUSION OF LAW The claims for service connection for a back disability, varices of the left thigh, and gum disease to include bleeding gums are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The service medical records show that in February 1991, the veteran was treated for low back pain of several days' duration. The veteran reported that the pain was in the mid- thoracic and upper lumbar areas. Physical examination revealed that the back was mildly tender to palpation in the right paravertebral area to the upper lumbar area. Otherwise, the spine was non-tender. There was no scoliosis. Pain was elicited upon rotation to the left and there was also some pain with flexion at the waist. There was no radiation of pain. The diagnosis was spasm/strain of the paravertebral musculature secondary to low back exertion. The veteran was provided painkillers and Motrin. In February 1992, the veteran complained of back pain, mostly in her low back with radiation to her right side, of 3 weeks' duration. She indicated that the pain had a burning sensation with throbbing. She did not report sustaining any injury. Physical examination revealed flexion to 30 degrees, extension to 10 to 20 degrees, and lateral flexion of 5 to 10 degrees. The veteran was able to stand on her toes and heels. There was tenderness of the paraspinal muscles in the thoracic and lumbar regions. The veteran was provided painkillers and Motrin. Within 2 weeks, the veteran was again seen and reported that the back pain had increased 2 days ago. The examiner noted that she was in moderate discomfort when she stood up and walked slowly. She was able to stand on her toes and heels. Her sensation was normal. There was tenderness of the lumbar paraspinal muscles and the sacroiliac joint. Straight leg raising was 60 degrees of the right and left. Knee jerk was positive bilaterally. The veteran was able to flex 30 degrees, extend 10 degrees, and laterally flex 10 degrees. The veteran was provided Motrin. Four days later, a follow-up examination was performed. The examination was noted to be relatively unchanged. In April 1992, the veteran was treated for complaints of back spasm. The examiner noted that she had recurrent musculoskeletal back pain. Physical examination showed no back spasm, negative straight leg raising, and tight hamstrings. Neurological examination was normal. On the Report of Medical History completed at discharge, the veteran reported that she had recurrent back spasms, but was not taking any medication. It was noted that she had recurrent musculoskeletal back pain. Physical examination of the spine upon discharge was noted to be normal. During service, the veteran was not treated for any disorder of the left thigh to include varices. In addition, she was not treated for gum disease to include bleeding gums. The veteran's post-service medical records consist of both VA and private treatment records and examination report. However, the private treatment records only pertain to left knee disability. In March 1993, the veteran underwent a VA general examination. Physical examination revealed varicose veins of the left inner thigh, one varix noted. The diagnosis was varices in the left thigh. She was also provided an orthopedic examination. At that time, low back examination was normal without any vertebral body tenderness, disc space tenderness, or sacroiliac joint tenderness. Her patellar and Achilles deep tendon reflexes were brisk. There was negative straight leg raising to 120 degrees. Flexion of the back was 90 degrees, extension was 15 degrees, left and right bending was 32 degrees, and rotation was 30 degrees. X-rays of the lumbosacral spine showed no evidence of degenerative joint disease. The impression was normal back examination. In April 1994 and September 1994, the veteran was provided VA outpatient treatment. In April 1994, varices of the left upper thigh were noted. In September 1994, the veteran complained of left lower extremity varices. Physical examination revealed left medial upper thigh with varicosity and an increase of such along the back of the thigh and below the knee. In January 1997, the veteran was provided VA outpatient treatment. Evaluation of the musculoskeletal system was normal. It was noted that the veteran had varices. In addition, the veteran complained of having bleeding gums. In July 1997, it was again noted that the veteran had varices. In July 1997, the veteran was afforded a VA hematological examination. At that time, she complained of gingivitis and anemia. Examination of the mouth and throat revealed no inflammation, no exudates, and good dentition. The diagnosis was nutritional anemia. In addition, she was provided a VA dental examination. With regard to the veteran's gingiva, her gingiva was noted to be grossly unremarkable except in the area of the crowded and malposed teeth where some gingival overgrowth was present. The diagnosis was slight gingival overgrowth in the area of crowded lower arter in teeth. Thereafter, in March 1998, October 1998, November 1998, and February 1999, the veteran failed to report for VA examinations. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (1999). With regard to dental conditions, each missing or defective tooth and each disease of the investing tissues will be considered separately, and service connection will be granted for disease or injury of individual teeth and investing tissues, shown by the evidence to have been incurred in or aggravated by service. 38 C.F.R. § 3.381(a) (1999). As to each noncompensable service-connected dental condition, a determination will be made as to whether it is due to a combat wound or other service trauma. 38 C.F.R. § 3.381(e) (1999). Replaceable missing teeth are not disabling conditions, and may be considered service connected solely for the purpose of determining entitlement to dental examination or outpatient dental treatment. 38 C.F.R. § 4.149 (1999). If a dental condition is due to service trauma, the veteran is entitled to VA outpatient dental treatment (for the specific dental condition due to trauma) as often as may be found necessary, regardless of when an application for such treatment is filed. 38 U.S.C.A. § 1712(a)(1)(C) (West 1991); 38 C.F.R. § 17.161(c) (1999). Periodontal disease, treatable carious teeth, and replaceable missing teeth, among other dental conditions, are not disabling, and may be considered service connected solely for the purpose of determining entitlement to VA dental examination or outpatient dental treatment. 38 C.F.R. § 4.149 (1999) (this regulation was effective February 17, 1994, although 38 C.F.R. § 4.150, as in effect prior to that date, also provided that such dental conditions were to be rated noncompensable). Wisdom teeth (i.e., third molars), extracted during service, are not subject to service connection, unless they were extracted for reasons other than malposition or impaction. 38 C.F.R. § 3.382(c) (1999). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (1999). The threshold question that the Board must address with respect to each claim for service connection is whether the appellant has presented a well-grounded claim. A well- grounded claim is one that is plausible. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet. App. 341 (1996). The United States Supreme Court declined to review that case. Epps v. West, 118 S. Ct. 2348 (1998). The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court, in Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996), outlined a three-prong test which established whether a claim is well grounded. The Court stated that in order for a claim 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). The Court has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). A claim is not well grounded where a claimant has not submitted any evidence of symptomatology of a chronic disease within the presumptive period, continuity of symptomatology after service, or other evidence supporting direct service connection. Harvey v. Principi, 3 Vet. App. 343 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board notes, however, that while the veteran is offering her own medical opinion and diagnoses, the record does not indicate that she has any professional medical training or expertise to render her competent to do so. See Boston v. West, 11 Vet. App. 124, 127 (1998) ("lay testimony . . . is not competent to establish, and therefore not probative of, a medical nexus"); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993). Thus, although the veteran asserts that her back, left thigh, and gum disease disabilities had their onset during service, this assertion does not make the claim well-grounded if there is no competent medical evidence of record of a nexus between any disability in service and his alleged current disability. See Savage v. Gober, 10 Vet. App. 489 (1997); Heuer v. Brown, 7 Vet. App. at 387 (1995) (lay evidence of continuity of symptomatology does not satisfy the requirement of competent medical evidence showing a nexus between the current condition and service). As such, the Board will review the record to assess whether all three of the criteria of Caluza are met and the evidence of record supports the veteran's assertions. A. Back Disability Although the veteran was noted to have recurrent musculoskeletal back pain upon discharge, she was not diagnosed as having a definitive back disability at that time. The Court has stated that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999). Moreover, post- service, the veteran has not been diagnosed as having a back disability; in fact, her orthopedic back examination was found by the examiner to be normal. Thereafter, she failed to report for any other examinations. 38 C.F.R. § 3.655 (1999). Her outpatient records do not show current back disability. Thus, in light of the above, it is clear that the current medical evidence is negative for any diagnosis of a back disability. Therefore, the Board finds that although the veteran currently asserts that she should be service- connected for a back disability, she has not submitted any competent medical evidence to support her allegation. As noted, the Court has stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak. If no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit citing Tirpak. In this case, there is no supporting evidence in the veteran's claim for service connection. All of the prongs of Caluza are not satisfied. In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Therefore, in light of the foregoing, the veteran's claim for service connection for a back disability must fail. B. Varices of the Left Thigh There is no in-service diagnosis of varices of the left thigh. Post-service, the veteran was diagnosed as having varices of the left thigh, but there is no competent medical evidence establishing a nexus between this disability and service. Thus, as there is no competent medical evidence establishing a nexus between the current diagnosis and service, all of the criteria of Caluza have not been met. As such, the claim for service connection for varices of the left thigh is not well grounded. II. Bleeding Gums As indicated above, gum disease is considered a noncompensable condition, and service connection for gum disease for compensation purposes is precluded. 38 C.F.R. §§ 4.149, 4.150 (1999). Nevertheless, even though compensation is not provided for gum disease, the Board notes that there is no inservice diagnosis of gum disease to include bleeding gums. Post-service, dental examination revealed that the veteran's gingiva was noted to be grossly unremarkable except in the area of the crowded and malposed teeth where some gingival overgrowth was present and a diagnosis of "slight gingival overgrowth in the area of crowded lower arter in teeth" was rendered. However, there is no competent medical evidence establishing a nexus between this disability and service. Thus, as there is no competent medical evidence establishing a nexus between the current diagnosis and service, all of the criteria of Caluza have not been met. In light of the foregoing, the claim for service connection for gum disease to include bleeding gums is not well grounded. D. Conclusion Since the veteran's claims are not well grounded, VA is under no duty to assist the veteran in developing the facts pertinent to the claims. See Epps, 126 F.3d at 1468. Furthermore, the Board is aware of no circumstances in this matter that would put the VA on notice that any additional relevant evidence may exist which, if obtained, would well- ground any of the appellant's claims of entitlement to service connection. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). In claims that are not well grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. However, the VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case, to include the statement of the case, shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) (West 1991) as the veteran was fully informed of the reason for the denial of her claims and was advised of what evidence was needed in order to support her claims. As a final matter, the Board notes that the RO appears to have denied that veteran's claims on the merits, while the Board has concluded that the claims are not well grounded. However, the Court has held that "when a RO does not specifically address the question whether a claim is well- grounded, but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). ORDER The claims for service connection for a back disability, varices of the left thigh, and gum disease to include bleeding gums are denied as not well grounded. JACQUELINE E. MONROE Member, Board of Veterans' Appeals