BVA9503697 DOCKET NO. 93-12 491 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from August 1955 to July 1959. This appeal arises from a July 1991 rating decision of the Department of Veterans Affairs (VA), St. Louis, Missouri, Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to service connection for a low back disability, and denied the claim of entitlement to an increased evaluation for the veteran's service-connected residuals of fracture of the left hip joint, acetabulum, with arthritis, and an increased (compensable) evaluation for his service-connected scars of both knees. The record on appeal contains a VA Form 21-4138 (Statement in Support of Claim) received from the veteran at the RO in August 1991, in which the veteran expressed his disagreement with the above-referenced July 1991 rating decision. The veteran specifically indicated that he was filing a disagreement with respect to the denial of his claims relating to his back, both knees, his left leg, and a head injury. A statement of the case, however, was subsequently issued solely addressing the issue of the veteran's claim for service connection for a back disability. The Board of Veterans' Appeals (Board) notes that the record does reflect some confusion on the part of the veteran regarding exactly what disabilities were, in fact, service-connected. Pursuant to 38 C.F.R. § 20.204, withdrawal of a Notice of Disagreement may be by the appellant or by his representative, except that a representative may not withdraw a Notice of Disagreement filed by the appellant personally without the express written consent of the appellant. Although it may be inferred from the record that the veteran did not wish to continue his appeal as to the other issues and the record contains what appears to be an express withdrawal of the Notice of Disagreement as to the head injury issue, the RO should clarify this matter on remand as the case must be returned to the RO on other grounds. The threshold question is whether the veteran has presented evidence of a well-grounded claim. The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is one that is plausible, that is meritorious on its own or capable of substantiation. If a claimant has not presented a well- grounded claim, his or her appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet.App. 136 (1994); Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990). Under the law, a claim for benefits need not be conclusive, but it must be accompanied by evidence. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The assertions of a lay party on matters of medical causation or date of inception of a disease or disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet.App. 211 (1993). The assembled records for review include numerous medical records, both VA and private, relating to treatment received by the veteran for a low back disability beginning in the 1970's. At a personal hearing held at the RO in November 1992, the veteran indicated that two to three years prior to that time, he had been furnished with orthotics by a physician in Branson, Missouri, for gait disturbance due to shortening of the left leg and a low back disability caused by his service-connected left hip disability. Such records may render the appellant's claim of secondary service connection well grounded inasmuch as the claim may then be "capable of substantiation." Moreover, the record reflects that the veteran has received ongoing medical treatment for a back disability at various VA medical facilities, including the VA Medical Center in Kansas City, Missouri, and at the VA satellite outpatient treatment clinic in Mt. Vernon, Missouri. The RO should procure all pertinent private and VA medical records and associate them with the record on appeal. At the November 1992 hearing, the veteran raised the issue of service-connection for a back disability as secondary to his service-connected left hip disorder. Prior to this time, the RO had developed the issue on the basis of the veteran's claim that he had sustained a back injury in a motor vehicle accident in service. Based on this newly asserted contention, the veteran's accredited representative in this case has requested that the case be remanded to the RO for a VA orthopedic examination in order to obtain a medical opinion relating to the question of the relationship, if any, between the veteran's service-connected left hip disorder and a low back disability. The VA has an obligation under 38 U.S.C.A. §§ 5103(a), 7722 (West 1991) to advise the appellant of the evidence necessary to complete his or her application for benefits. In this case, the appellant is hereby notified that preliminary review indicates that the "evidence necessary to complete the application" is competent evidence that the veteran's service-connected left hip disorder is causally related to a low back disability. Once the development below is completed, the record must again be reviewed to determine whether the claim is ultimately well grounded. Accordingly, the appellant is advised that, unless the development directed herein coincidentally provides evidence on the theories of entitlement to secondary service connection for a back disability, he remains under the obligation to provide such evidence. Hence, the obligation to afford the veteran a VA examination of his low back would only arise if the RO determines that the claim is well-grounded. The record reflects that the veteran was afforded a VA examination of his left hip and various service-connected scars in January 1992. The veteran's back was not examined at the time. The record on appeal, however, contains numerous medical records relating to treatment for a low back disability, variously characterized, none of which relate that disability to the veteran's service-connected left hip disability. Once a determination has been made by the RO as to whether the veteran's claim is well grounded, the RO should then determine whether a VA examination is warranted. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should clarify whether or not the veteran wishes to withdraw his Notice of Disagreement with regard to the issues of entitlement to increased evaluations for his service-connected residuals of fracture of the left hip joint, acetabulum, with arthritis, and service-connected scars of both knees. The RO must process these issues for appellate consideration unless a writing signed by the veteran indicating his desire to withdraw these issues from appellate consideration is added to the records assembled for appellate review. 2. The veteran should be asked to identify all sources of medical treatment received for a low back disability, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested to include records of the private physician in Branson, Missouri, who furnished the veteran with orthotics within the last several years, as well as records from the VA Medical Center in Kansas City, Missouri, dated from November 1992 through the present, and the VA satellite outpatient treatment clinic in Mt. Vernon, Missouri, dated form March 1991 through the present. All records obtained should be added to the claims folder. 3. Thereafter, the RO should make a specific determination, based upon the complete record, with respect to whether or not the appellant has presented a well- grounded claim. Based on this determination, and if appropriate, the RO should accomplish any further indicated development including affording the veteran a VA examination to determine the etiology of the veteran's low back disability, and to determine the relationship, if any, between any low back disability and the veteran's service-connected left hip disorder. If such examination is conducted, the examiner should be requested to identify all symptomatology related to the veteran's service-connected left hip disability and that related to any nonservice-connected low back disability. The examiner is requested to express a medical opinion as to the relationship, if any, between the veteran's service- connected residuals of fracture of the left hip joint, acetabulum, with arthritis, and a low back disability. Such an opinion should address all back pathology separately identified on examination as well as that documented in the record to include osteoarthritis, spinal stenosis, and disc disease. The claims folder should be made available to the examiner prior to any examination. 4. If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. CHARLES E. HOGEBOOM 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).