Citation Nr: 0004808 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 98-12 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from March 1942 to June 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Board notes that, although the February 1998 rating decision entitled the issue as service connection for back disability as secondary to service-connected left knee disability, the rating decision also adjudicated on the merits the issue of service connection for a back disability on the basis of direct service connection, and specifically entered a finding that service connection for a back disability was denied because of the lack of evidence of injury or trauma to the back in service. The veteran was notified of this decision in March 1998. With regard to a notice of disagreement (NOD), in an April 1998 Statement in Support of Claim, the veteran indicated that he wanted a statement of the case issued in his "recent denial of service connection of my back disability," but did not specify whether he wanted to appeal the denial of service connection on either a direct basis (related to a back injury in service) or on a secondary basis (caused by his service- connected left knee disability), or both. Applying a broad interpretation of the law, as reflected by 38 C.F.R. §§ 3.102, 4.3, 20.202 (1999), the Board finds that the veteran's April 1998 submission effectively constituted NOD to the February 1998 rating decision denial of service connection for a back disability, under both a direct and secondary theory of service connection. The May 1998 statement of the case (SOC) served as a SOC as to both of the issues to which the veteran had entered a NOD, that is, to both direct and secondary service connection for a back disability. Although this SOC stated the issue to be service connection for back disability as secondary to service-connected left knee disability, the SOC included the laws and regulations pertaining to both direct and secondary service connection, and informed the veteran that service connection for a back disability had been denied because of the lack of evidence of injury or trauma to the back in service. As the February 1998 rating decision and the May 1998 SOC advised the veteran of the law and regulations pertaining to direct service connection, notwithstanding the issue was listed as secondary service connection, the Board finds that the veteran has not been prejudiced by thereby. The record reflects that the veteran was notified of the law and regulations and subsequently presented evidence pertaining to direct service connection, appeared at a personal hearing and entered testimony regarding direct service connection, and in December 1999 the veteran's representative indicated that the veteran had sought service connection on a direct basis. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The applicable law and regulations provide that, after an appellant receives the SOC, he or she must file a substantive appeal within sixty days from the date the notification of the decision was mailed, or within the remainder of the one- year period from the date the notification of the decision was mailed, whichever period ends later. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1999). By regulation, the substantive appeal must consist of either a VA Form 9 or correspondence containing the necessary information. The substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. 38 C.F.R. § 20.202 (1999). The time period may be extended for a reasonable period on request for good cause shown. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.303 (1999). In a May 1998 statement the veteran claimed he was seeking service connection for his back disability as the result of an injury in service in 1941-1942. The RO entered another rating and provided a supplemental statement of the case denying service connection on a direct basis in June 1998. With regard to a substantive appeal, by his submission of a VA Form 9 in July 1998, the veteran effectively entered a substantive appeal only as to the issue of entitlement to service connection for a back disability on the basis of direct service connection. Although the veteran wrote that he wanted to "apply for service connection" for a back condition, as he specifically referred to a back injury in service in 1941-1942, and this statement was entered on a VA Form 9 within 60 days from the date of the SOC (which the Board has found included the issue of direct service connection for a back disability), the Board construes the veteran's July 1998 VA Form 9 as a substantive appeal as to the issue of entitlement to service connection on a direct basis for a back disability. Therefore, as an appeal was perfected, the issue of direct service connection for a back disability is currently before the Board on appeal, notwithstanding the RO's subsequent attempt to develop the issue of direct service connection as a new claim. The veteran has not submitted a substantive appeal, however, as to the issue of entitlement to service connection for a back disability as secondary to a service-connected left knee disability. On the VA Form 9 received in July 1998, the veteran wrote that he went into service with a bad back, performed duties which worsened his back in service, and fell out of a truck and injured his back in service. As he entered no specific arguments relating to errors of fact or law made by the RO in denying service connection on a secondary basis, the July 1998 VA Form 9 did not constitute a substantive appeal as to the issue of service connection for a back disability secondary to a service-connected left knee disability. 38 C.F.R. § 20.202 (1999). On his substantive appeal the veteran requested a personal hearing which was conducted at the RO in November 1998. At the hearing he identified the issue as service connection for his back disability on a direct basis and this was again reflected in the supplemental statement of the case provided to the veteran in February 1999. In this regard, the Board notes that, on a VA Form 646 dated in August 1999, the veteran's representative referred to the July 1998 VA Form 9 as establishing a substantive appeal on the issue of secondary service connection. Neither the veteran nor his representative at any time contended that any other documents filed subsequent to July 1998 were a substantive appeal. The Board has a legal duty to address the jurisdictional issues regardless of the actions of the RO. See Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996). FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for disposition of the veteran's appeal. 2. No competent medical evidence has been submitted to show that the veteran's current back disability is related to his active service, including a reported low back injury in service in 1941 or 1942 or 1943. CONCLUSION OF LAW The claim for service connection for a back disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for diseases or injuries incurred or aggravated while in active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 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. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Where a veteran who served for 90 days or more during a period of war develops arthritis to a degree of 10 percent or more within one year from separation from such service, such disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1999). Before reaching the merits of a claim for service connection, however, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded," that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has indicated that, alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such a condition. Savage v. Gober, 10 Vet. App. 488 (1997). That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Id at 498. The veteran contends that his current back disability was caused by service, either from a fall from a truck or by lifting heavy laundry boxes. In his substantive appeal, the veteran wrote that he was injured in service in 1941-1942, and his back condition resulted from this injury. The veteran's service medical records reflect that, at service entrance examination in March 1942, the veteran reported a history of many years of low back pain, with no clinical pathology. It was considered to not be disabling. The veteran was treated for various unrelated conditions, including treatment at Letterman General Hospital in San Francisco, California, in June 1942 for a left knee disorder which had been bruised on his bed two months prior, and in June 1943 for an ill defined condition of the central nervous system and deviated nasal septum. Service medical records, including the examination for separation, are negative for diagnosis or clinical findings of a back disorder. In an Application for Compensation in September 1946, the veteran claimed service connection for disorders which did not include a back condition. On a VA examination in January 1947, the veteran complained of back pain. He reported being in bed the previous spring for three months because of his lower back. There was no reference to service and the examination was essentially negative. The diagnosis was no evidence of arthritis at this time. Subsequently, various treatment records and examination reports reflect post- service treatment for various disorders with no complaints pertaining to the back until a VA hospitalization in September 1968 which disclosed mild lumbar spine osteoarthritis. There was no reference to service. VA examination in June 1994, noted complaints of aching of the lumbosacral spine and revealed L5 muscular atrophy, limited range of motion of the lumbar spine, and diagnosed degenerative disc disease of the lumbosacral spine, at L3-L5, with radiculopathy. There was no reference to service. At a VA compensation examination of the spine in November 1997, the veteran reported that he fell off a truck in service, but was not seen by a doctor. He also reported that he had terrible pain in the lumbosacral area in service in 1943 with no diagnosis being made and that he had back pain since then. Examination of the back revealed discomfort with exercise and range of motion testing. X-rays revealed degenerative changes of the lumbar spine with marginal spur formation at multiple levels. The examiner indicated the veteran had significant degenerative arthritis of the lumbosacral spine with degenerative discs at multiple levels. The physician reported reviewing the veteran's entire record and that the arthritis of the veteran's spine was not related to his service connected left knee disability. At a personal hearing in November 1998, the veteran testified in relevant part that: he fell from a truck in service and injured his head, but he did not injure his back at that time; he doubted that lifting boxes of laundry caused injury to his back, though it "could have"; he first complained about his back while on a ship, but it got better, and he did not complain for a while after that; he did not go to any doctor for his back while in service, but only for his sinuses and knee, and a nurse rubbed his back on one occasion; and he was treated about 3 times by a Dr. Tiesdale "maybe three months" after service. After a review of the evidence of record, and even assuming, for well-groundedness purposes, that the veteran experienced an injury to the back in service, the Board finds that there is no competent medical evidence of record to demonstrate that the veteran's current back disability, diagnosed as degenerative arthritis of the lumbosacral spine with degenerative discs at multiple levels, is related to his active service, including a reported low back injury in service, in 1941 or 1942 or 1943. Likewise, even though the veteran has reported at the November 1997 VA examination that low back pain had been continuous since an injury in service in 1943, there is no medical opinion evidence of record to relate this claimed continuous post-service symptomatology to his service. See Savage, 10 Vet. App. at 498. Indeed, during the VA examination in January 1947, about two and a half years after service, the veteran complained of back pain from the previous spring, but made no reference to service. Arthritis was first indicated to be present during a VA hospitalization in September 1968, without any reference to service. With regard to the veteran's assertion of etiology, a lay person is competent to describe symptoms observed at any time, but is not competent to offer evidence which requires medical knowledge, such as a determination of medical etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Grottveit, 5 Vet. App. at 93; Stadin v. Brown, 8 Vet. App. 280, 284 (1995). If the only evidence on a medical issue is the testimony of a lay person, the claimant does not meet the burden imposed by 38 U.S.C. section 5107(a) and does not have a well-grounded claim. Unsupported by medical evidence, a claimant's personal belief, however sincere, cannot form the basis of a well-grounded claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). For these reasons, the Board must find that the veteran's claim for service connection for a back disability, on a direct service connection basis, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). In a brief on appeal dated in December 1999, the veteran's representative wrote pertaining to direct service connection, that, after correspondence to the Letterman U.S. Army Hospital, Presidio of San Francisco, California, was returned and marked "Forwarding Order Expired," a request for records should have been sent to the National Personnel Records Center. However, the Board finds that further development is not warranted in this veteran's case. The duty to assist the veteran has been fulfilled, as complete service medical records have been obtained and are of record. Neither the veteran nor the representative has indicated that these records are incomplete. Additionally, service medical records reflect that in June 1943 the veteran was transferred to another hospital for a disorder of the nervous system and deviated nasal septum and not, as implied, for a back injury. Furthermore, the veteran has not indicated that such a record of hospital treatment for a back condition exists. The veteran wrote on his VA Form 9, dated in July 1998, that he had been treated at a hospital for back problems prior to discharge. However, subsequently, in sworn testimony at a personal hearing on appeal in November 1998, the veteran specifically testified that he fell from a truck and injured his head in service, but he did not injure his back, he doubted that lifting boxes of laundry caused injury to his back, and that he did not go to a doctor for his back while in service, but only for his sinuses, though a nurse rubbed his back on one occasion. During the VA examination in November 1997, the veteran reported falling from a truck in service and related that he was not seen by a doctor. In his December 1999 brief, the representative does not assert that a search for records would yield evidence of treatment for a back condition at Letterman Hospital, only that the search for such records to the National Personnel Records Center should have been conducted. In connection with the search for documents, the duty to assist is limited to specifically identified documents that by their description would be facially relevant and material to the claim. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Moreover, even assuming, for well-groundedness purposes, that the veteran sustained a back injury in service (as he wrote at one point but denied at other times), and even assuming that he had been treated at a service hospital for such back injury, which is what any existing in-service hospital treatment records might show, the veteran's claim would still be not well grounded because, as the Board's finding herein reflects, the veteran has not presented competent medical evidence of a nexus between his currently diagnosed back disability and his service, including a back injury in service. The law does not require a useless act by VA, such as a remand, where there is no possibility of benefits flowing to the veteran. See Winters v. West, 12 Vet. App. 203, 207-8 (1999) (remand unnecessary, even where there is error, where there is no possibility of benefit flowing to the veteran because veteran had not submitted a well-grounded claim). As the veteran has not presented a well-grounded claim, the duty to assist the veteran does not arise. Epps v. Gober, 126 F.3d 1464 (1997); see also Morton v. West, 12 Vet. App. 477 (1999) (per curiam) (VA Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until a well-grounded claim has been submitted). Similarly, under 38 U.S.C.A. § 5103(a) (West 1991), the VA Secretary is obligated by the duty to inform the veteran of any evidence of which the Secretary is on notice that is necessary to complete an application for benefits only "if the resulting evidence would likely [render] the claim plausible." Hicks v. West, 12 Vet. App. 86, 90 (1998) (citing Brewer v. West, 11 Vet. App. 228, 236 (1998)); see also Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). ORDER The veteran's claim of entitlement to service connection for a back disability, being not well grounded, is denied. STEVEN L. COHN Member, Board of Veterans' Appeals