BVA9503099 DOCKET NO. 90-06 844 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bursitis of the left shoulder. 2. Entitlement to service connection for left carpal tunnel syndrome. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran served on active duty from September 1952 to January 1956. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 1989 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) which, among other things, denied entitlement to service connection for psychiatric disability, bursitis of the left shoulder, left carpal tunnel syndrome and hypertension. That same rating decision confirmed a previous denial of entitlement to a total disability rating based on individual unemployability due to service-connected disability (which issue was already in appellate status at that time). A notice of disagreement received in October 1989 initiated an appeal on the issues of entitlement to service connection for psychiatric disability, bursitis of the left shoulder, left carpal tunnel syndrome and hypertension. In March 1990, the veteran appeared at a personal hearing before a member of the Board sitting at the RO. The Board remanded the case in February 1991. A statement of the case addressing these issues was furnished to the veteran and his representative in June 1991, and a written communication received in July 1991 constituted a substantive appeal on these issues. By decision dated in February 1993, the Board granted entitlement to service connection for psychiatric disability and remanded the case to the RO for further development. By rating decision dated in July 1994, the RO effected the Board's grant of service connection for psychiatric disability, assigning a 30 percent rating for that disability. By that same rating decision, the RO granted entitlement to a total disability rating based on individual unemployability due to service-connected disability. Accordingly, the only issues remaining in appellate status are entitlement to service connection for bursitis of the left shoulder, left carpal tunnel syndrome and hypertension. The veteran is represented by the Disabled American Veterans. In written argument dated in October 1994, the veteran's representative asserted that a disability evaluation in excess of 30 percent is warranted for the veteran's service-connected psychiatric disability. The Board views this communication as a timely notice of disagreement from the July 1994 rating decision thus initiating an appeal on the issue of entitlement to an increased rating for service-connected psychiatric disability. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1994). This matter is hereby referred to the RO for appropriate development and action (including the issuance of a statement of the case on the increased rating issue) pursuant to 38 C.F.R. § 19.26 (1994). CONTENTIONS OF APPELLANT ON APPEAL The essence of the contentions advanced by and on behalf of the veteran is that his bursitis of the left shoulder and left carpal tunnel syndrome are due to overuse syndrome brought about by his service-connected total paralysis of the right upper extremity. The veteran further contends that he developed hypertension due to the stress of trying to overcompensate due to his service- connected total paralysis of the right upper extremity. 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 veteran has not presented evidence of a well- grounded claim for entitlement to service connection for bursitis of the left shoulder, left carpal tunnel syndrome and hypertension. FINDINGS OF FACT 1. The veteran's service medical records contain no complaints or clinical findings related to bursitis of the left shoulder, left carpal tunnel syndrome or hypertension. 2. The first medical evidence of the presence of bursitis of the left shoulder, left carpal tunnel syndrome and hypertension is many years after the veteran's service. 3. The only evidence relating bursitis of the left shoulder, left carpal tunnel syndrome and hypertension to events during the veteran's service or to a service-connected disability is the veteran's own statements and testimony. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for bursitis of the left shoulder, left carpal tunnel syndrome and hypertension is not well-grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION A claimant for VA benefits has the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). If a claim is not well-grounded, then the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The United States Court of Veterans Appeals (Court) has defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). 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 section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The Court has specifically held that a service connection claim is not well- grounded if the claimant's service records do not show the claimed disability and there is no medical evidence to link a current disability with events in service or with a service- connected disability. Montgomery v. Brown, 4 Vet.App. 343 (1993). Before turning to consideration of the issues certified on appeal, the Board would first emphasize that applicable law provides that entitlement to service connection will be granted if the facts, shown by a preponderance of the evidence, establish that a particular disease or injury resulting in disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1994). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1994). Service connection may be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Additionally, entitlement to service connection may be established for certain chronic disabilities, such as hypertension, if the disability is manifested to a degree of 10 percent or more within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310 (1994). In the present case, the veteran's service medical records show that the veteran suffered head and right upper extremity injuries as a result of being hit by a motor vehicle in August 1955. However, although the veteran received extensive medical care and observation as a result of this accident, his service medical records are completely silent with regard to any complaints or medical findings pertinent to bursitis of the left shoulder, left carpal tunnel syndrome and hypertension. Significantly, the report of VA hospitalization immediately after discharge from service in 1956 does not contain any references to elevated blood pressure readings or any complaints or clinical findings related to left shoulder or left arm symptomatology. Evidence in the claims file documents additional VA hospitalization in 1968 for a left hand injury suffered in an altercation. Subsequent medical records show regular treatment for the claimed disabilities beginning in the mid-1980's. A 1985 entry notes a laceration of the left forearm (wrist) in 1977 which resulted in intermittent wrist pain and a tingling sensation. A 1988 statement by two military physicians refers to the fact that the veteran's history was pertinent for "hypertension for the past 12 years." This report further states that the veteran developed a left subachromial bursitis in the fall of 1987 and that he also had a mild left carpal tunnel syndrome. VA medical examination in March 1994 revealed hypertension and degenerative arthritic changes of the left shoulder, but did not confirm left carpal tunnel syndrome. It is readily clear from the record that neither bursitis of the left shoulder, left carpal tunnel syndrome or hypertension was manifested during service or for many years after discharge, and the veteran and his representative do not appear to contend otherwise. The underlying theme of the veteran's contentions is that these disabilities are related to a service-connected disability which resulted from the inservice accident. Specifically, it is contended that the veteran's overuse syndrome of the left upper extremity was due to his service-connected right arm paralysis. While the veteran may offer statements and testify as to the manifestations of a disability, questions involving diagnostic skills require medical experts. Espiritu, supra. However, the record contains no medical evidence to support the claimed secondary relationship. While several medical reports do refer to overuse syndrome as the cause of the veteran's left shoulder disability, there is no medical opinion suggesting that the cause of the overuse syndrome was the veteran's service-connected right arm disability. The Board notes here that the veteran was a painter, and the veteran informed a VA examiner in December 1988 that he had been suffering left shoulder problems since painting to an excessive degree three years before. Moreover, while there are various medical reports showing that the veteran has received treatment for hypertension and for possible left carpal tunnel syndrome since the 1980's, there is likewise no medical evidence which tends to link the development of these disabilities in any way to any service-connected disability. To summarize, what is presented in the instant case is a record which does not document bursitis of the left shoulder, left carpal tunnel syndrome or hypertension during service or for many years after discharge. The veteran's statements and sworn testimony, offered many years after the fact, expressing his lay opinion that these disorders are related to events in service or to a service-connected disability, without any supporting medical opinion, are not sufficient to establish a well grounded claim. Montgomery, supra. Thus, the veteran's appeal must be dismissed. 38 U.S.C.A. § 5107(a) (West 1991). ORDER The appeal is dismissed. E. M. KRENZER 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. (CONTINUED ON NEXT PAGE) 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.