Citation Nr: 0000321 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 96-34 590 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for a claimed back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The veteran served on active duty from April to November 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a November 1995 rating decision of the RO. In October 1999, the veteran's representative indicated that the veteran wanted to initiate claims of service connection for a nervous condition, headaches, bilateral tinnitus and a right earlobe condition. It was indicated that treatment records could be obtained from the East Orange VA Medical Center. The Board notes that by rating action in June 1999, the RO denied service connection was denied for a nervous condition, bilateral hearing loss, headaches and tinnitus. This matter is referred to the RO for the appropriate action. FINDING OF FACT No competent evidence has been submitted to show that the veteran currently suffers from a back disability due to disease or injury which was incurred in or aggravated by active service. CONCLUSION OF LAW The veteran's claim for service connection for a back disorder is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of a well-grounded claim; that is, one which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, the Board finds that his claim is not well grounded. A careful review of the service medical record shows that in May 1971 he was treated at the Sheppard Air Force Base Hospital on emergency sick call for a twisted right ankle. It was noted that while doing "KP" he slipped on the wet floor and twisted the right ankle. An x-ray study of the right ankle was negative for significant bone or joint abnormality. There is no indication that he injured his back at that time. The remainder of the service medical records are negative for any evidence of a back injury in service. In April 1988, the veteran submitted an Application for Compensation, seeking service connection for hypertension and hearing loss. He did not indicate that he suffered a back injury during active duty on that application. VA outpatient and hospital records dated from 1988 to 1995 show a history of a herniated disc. A June 1988 record shows that the veteran reported that he was unemployed from Amtrak for eight months due to a back disorder. In February 1992, the veteran reported that he had a bad back from an accident several years earlier on Amtrak. Those records do not include any evidence relating a back disability to the veteran's active service. New York Hospital records dated from April 1990 to November 1992 note complaints of back pain, but do not show evidence relating any back disability to active service. On VA examination in February 1998, the veteran reported that he fell in the service on a railroad job and subsequently injured his back. The final diagnoses included that of herniated nucleus pulposus from history, although the low back x-ray studies were normal. On VA neurological examination in January 1999, the veteran reported a long history of lower back pain. The diagnosis was that of lumbosacral strain/sprain syndrome with restricted range of motion. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Statutory law as enacted by the Congress also charges a claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). This threshold requirement is critical since the duty to assist a veteran with the development of facts does not arise until the veteran has presented evidence of a well- grounded claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect the claim is "plausible" or "possible" is required. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claimant therefore cannot meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). According to the Court in Caluza, a well-grounded claim of service connection requires competent evidence of the following: i) current disability (through medical diagnosis); ii) incurrence or aggravation of a disease or injury in service (through lay or medical evidence) and; iii) a nexus between the in-service injury or disease and the current disability (through medical evidence). Caluza v. Brown, 7 Vet. App. at 506. Moreover, the truthfulness of evidence offered by the veteran and his representative is presumed in determining whether or not a claim is well- grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court held in Savage v. Gober, 10 Vet. App. 488 (1997), that the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such a condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is demonstrated during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. After a full review of the record, the Board concludes that the veteran's claim of service connection for a back disability is not well grounded. While the veteran contends that he sustained a back injury in service, no competent medical evidence has been submitted to support these lay assertions. The service medical records do not show that he suffered a back injury in service. The post-service medical records also fail to show that any current back disability related to any incident or injury during service. Since as a lay person, he is not competent to provide opinions as to questions of medical diagnosis and causation as presented in this case, his statements alone are not sufficient to present a well-grounded claim. Espiritu. The Board notes that the veteran and his representative have requested that additional service medical records and Office of Surgeon General (SGO) reports be obtained regarding his claimed back injury in service. As discussed hereinabove, the service medical records have been obtained and do not show treatment for a back injury. SGO has records pertaining to hospital admissions from 1942 to 1945, and from 1950 to 1954 and would not provide useful information regarding the veteran's claim. As stated previously, absent a well- grounded claim, there is no statutory duty under 38 U.S.C.A. § 5107(a) (West 1991) to assist the veteran with the development of evidence. As no competent evidence has been submitted to show that the veteran has a current back disability due to disease or injury which was incurred in or aggravated by his active service, the Board finds that the veteran has not met the requirements set forth by the Court in Caluza for presenting a well-grounded claim. ORDER Service connection for a back disability is denied, as a well-grounded claim has not been presented. STEPHEN L. WILKINS Member, Board of Veterans' Appeals