Citation Nr: 0002361 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 96-35 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of a neck injury. 2. Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD David T. Cherry, Associate Counsel INTRODUCTION The veteran served on active duty from January 1973 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). In February 1997, the veteran's claims file was transferred to the Boise, Idaho, VA RO. However, in September 1998, the claims file was transferred back to the St. Louis, Missouri, VA RO. FINDINGS OF FACT 1. There is no competent evidence linking the veteran's current neck disability, first shown over 20 years after service, to any incident of service. 2. There is no competent evidence linking the veteran's current back disability, first shown over 20 years after service, to any incident of service. CONCLUSIONS OF LAW 1. The claim for service connection for residuals of a neck injury is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for residuals of a back injury is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records reveal that on entrance examination the veteran indicated that she had not had arthritis, rheumatism or bursitis; bone, joint or other deformity; or recurrent back pain. The veteran's neck and spine were normal. In service, there were no complaints or treatment of a neck or back disorder. In March 1973, the veteran took a pregnancy test. The reaction was "very weak negative," and retesting was recommended. From March 1973 to April 1973, the veteran was given birth control pills. The veteran was discharged in June 1973 because she was pregnant. On separation examination, the veteran reported that she had not had arthritis, rheumatism or bursitis; bone, joint or other deformity; or recurrent back pain. Physical examination revealed that her neck and spine were normal. The veteran filed an initial claim for VA disability benefits in 1995 noting a neck injury and back problems dating back to 1973. The only medical treatment she reported was by the VA in 1995. VA medical records reflect that in October 1995 the veteran was seen for back and neck complaints. November 1995 X-rays of the cervical spine revealed mild degenerative arthritis with degenerative disc disease at the C5-C6 interspace. The veteran underwent a private medical examination in December 1995, apparently for the purpose of Social Security disability benefits. She reported that she had intermittent numbness in her hands for the past four years and that she had developed neck and back pain after a car accident in 1994. The impressions of the examining physician included the following: chronic low back pain, by history; chronic neck pain, secondary to cervical strain, mild; and no clinical evidence of carpal tunnel syndrome, both hands. VA medical records indicate that, during a February 1996 hospitalization for substance abuse, it was noted that the veteran had chronic neck pain. On an April 1996 VA neck examination, the veteran reported that she had sustained a whiplash-type injury when she was in a car accident in 1994 and that her neck had continued to hurt since that incident. She indicated that she had chronic, continuous neck pain with radiation into the left trapezial and shoulder area. Physical examination revealed that there was some minimal tenderness in the left lateral neck, but that there was no evidence of bony deformity. X- rays of the cervical spine revealed no definite radiographic evidence of recent fracture or dislocation. There was moderate narrowing of the C5-C6 vertebral space and marginal osteophytes at the level compatible with degenerative intervertebral disc disease. The diagnosis was moderate degenerative changes at the level of C5 to C6, indicative of degenerative intervertebral disk disease. The veteran was also afforded a VA spine examination in April 1996. She stated that she had no low back pain, but that she had an occasional pain in the upper part of the back. X-rays of the thoracic spine revealed mild dorsal scoliosis. Minimal anterior marginal osteophytes were noted in the midportion of the dorsal spine. X-rays of the lumbar spine revealed no definite radiographic evidence of a recent fracture or dislocation. Articular surfaces appeared fairly smooth, and the vertebral interspaces were well maintained. Following a physical examination, the diagnoses were the following: moderate degenerative changes at the level of C5- C6, indicative of degenerative intervertebral disk disease; minimal hypertrophic spondylosis of the midportion of the dorsal thoracic spine; and mild dorsal scoliosis. In her July 1996 notice of disagreement, the veteran reported that her neck and back were injured during service when she was hit and knocked over a table while she was pregnant and was never given calcium and vitamins that should be given to pregnant women. In her substantive appeal she argued that her disc disease was due to improper medical treatment in service, questioning how a disease could stem from an automobile accident. The veteran was hospitalized at a VA medical center from October 1996 to November 1996 for substance abuse treatment. During a physical examination, she complained of daily musculoskeletal pains. On discharge, it was noted that she had low back pain. In a May 1997 statement, a VA physician indicated that the veteran was unable to work because of pains in the neck, low back, feet, and hands. In July 1997, the Social Security Administration granted Social Security disability benefits to the appellant on the basis of depression, degenerative arthritis of the cervical spine, hypertrophic spondylosis of the midportion of the dorsal thoracic spine, dorsal scoliosis, and a history of alcohol and drug abuse. It was noted that the period of disability began in May 1993. In a February 1998 statement, the veteran, in essence, suggested that her current disorders were due to not receiving vitamins during her in-service pregnancy. In April 1998, the Board remanded the veteran's claims for further development. VA medical records reflect that in May 1998 the veteran had a physical examination. The diagnoses were cervical disc disease/degenerative joint disease of the cervical spine, and fibromyositis/musculoskeletal pain. A June 1998 electromyography (EMG) and nerve conduction study (NCS) were normal. In November 1998, the veteran was afforded a VA general medical examination. The examiner reviewed the veteran's medical records, which were noted to show multiple disorders including osteoarthritis with degenerative joint disease and osteoporosis. It was noted that the veteran stated she also had a history of dorsal scoliosis, with hypertrophic spondylosis of the dorsal spine. The veteran related that while pregnant in service she was not given vitamins and was not given proper care, stating that her current medical problems were the result of such lack of proper care. The examiner noted that the claims file was not available and that attempts to obtain it were unsuccessful. The veteran reported that her neck was very painful and that she had degenerative joint disease in the spine, indicating that osteoarthritis had been diagnosed since her discharge from service. Following examination, the diagnoses were osteoarthritis, degenerative joint disease, and minimal scoliosis. The veteran also underwent a VA orthopedic examination in November 1998. The examiner noted that the claims file was not available. The veteran reported that, other than a fender-bender type car accident in 1994 in which she had a whiplash, she had had no injuries to her spine. Physical examination revealed that the spine was palpated with no discomfort at all. The doctor noted that the veteran's spine was uncomfortable on range of motion testing. The veteran indicated that her neck hurt constantly and that any movement was painful. No spasms were noted. Her posture and the musculature of the back were both normal. The neurological evaluation was normal. X-rays of the cervical spine revealed moderate degenerative changes at C5-C6. X-rays of the lumbar spine were normal. X-rays of the thoracic spine revealed minimal hypertrophic spondylosis and dorsal scoliosis. The clinical diagnoses were minimal dorsal scoliosis and degenerative joint disease (i.e., osteoarthritis of the spine). Legal Criteria The threshold question is whether the appellant has presented evidence of well-grounded claims. 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") has defined a well-grounded claim as a claim that is plausible. In other words, a well-grounded claim is meritorious on its own or capable of substantiation. If the claim is not well grounded, the appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the appellant has not submitted evidence of a well-grounded claim, there is no duty to assist her in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury, which results in a current disability, was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110. Service connection may 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). If a veteran had 90 days or more of service during wartime, and if arthritis is manifested to a compensable degree within one year following discharge from service, the disorder will be considered to have been incurred in service. This is a rebuttable presumption. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order for a claim to be well grounded, there must be competent evidence of the following: A current disability, in the form of a medical diagnosis; incurrence or aggravation of a disease or injury in service, in the form of lay or medical evidence; and a nexus between the in-service aggravation or injury or disease and the current disability, in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 (1999) 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. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. To show a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at that time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required where the condition noted during service or in the presumptive period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the condition noted during service is not shown to be chronic or 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). The regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The Court has established the following rules with regard to claims addressing the issue of chronicity. The chronicity provision of 38 C.F.R. § 3.303(b) (1999) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such 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 if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). A lay person is competent to testify only as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage, 10 Vet. App. at 495- 97. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Although the veteran is competent to testify as to her in-service experiences and symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Also, evidence, which is simply information recorded by a medical examiner and not enhanced by any additional medical comment by that examiner, is not "competent medical evidence" for purposes of Grottveit. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Analysis The veteran alleges that she injured her back and neck during service and that she was given poor medical care during an in-service pregnancy. She currently has neck and back disorders that she attributes to service. However, there is no medical evidence of any neck or back disorders until over 20 years after active service. There is no evidence that she had a chronic neck or back disability, including arthritis, during active service. Service medical records do not reveal any complaints or treatment of a neck or back disability during service, and on the separation examination the spine and neck were normal and the veteran denied a history of recurrent back pain and other orthopedic/neurologic symptoms. Although her statements must be accepted as credible for the purpose of determining whether the claim is well grounded, her statements are not competent evidence of a chronic neck or back disability in service or that any current disability is of service origin. See Savage, 10 Vet. App. at 495; Espiritu, 2 Vet. App. at 494-95. In addition, there is no competent evidence that arthritis was compensably manifested within one year of active service. In fact, arthritis was not diagnosed until over 20 years after active service. There is no competent medical evidence that in any way relates any current back or neck disorder to the veteran's active service. No medical professional has related her current back and neck disorders to an injury in service or to any other incident in service, such as taking birth control pills or improper nutrition. The veteran's assertion in her February 1998 statement - her current disorders are due to not being given vitamins during her in-service pregnancy - is not competent medical evidence for purposes of well grounding this claim since she is not shown to be qualified to determine the diagnosis or etiology of a medical condition, even though she is competent to report observable symptoms. See Espiritu, 2 Vet. App. at 494-95. On the December 1998 VA general medical examination, the veteran reported that her osteoarthritis was the result of being in service and this was noted in the report. However, such is not medical evidence or opinion as it is merely information recorded by a medical examiner and is unenhanced by any additional medical comment. Thus, it is not competent medical evidence for purposes of Grottveit. See LeShore, 8 Vet. App. at 409. In short, there is no competent evidence that the appellant's current neck and back disorders are related to her active service. See Caluza, 7 Vet. App. at 506. Accordingly, these claims are not well grounded. Other Considerations While the veteran challenged the adequacy of her April 1996 VA examinations in her July 1996 notice of disagreement, there is no duty to assist under 38 U.S.C.A. § 5107 in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998). More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). In other words, the veteran was not even entitled to a VA examination under 38 U.S.C.A. § 5107 in the absence of a well-grounded claim. In reaching its decision, the Board is again mindful that the Court has held that there is some duty to assist a claimant in the completion of an application for benefits under 38 U.S.C.A. § 5103(a), depending on the particular facts in each case. See Robinette v. Brown, 8 Vet. App. 69 (1995); Beausoleil v. Brown, 8 Vet. App. 459 (1996); as modified by Epps v. Brown, 9 Vet. App. 341, 344 (1996), wherein the Court found that there was a duty to further assist in the development of evidence only when the appellant has reported the existence of evidence which could serve to cause his claim to be well grounded. The facts and circumstances of this case are such that no further action is found to be warranted. As to additional service medical records, the RO obtained the available service medical records. Also, the RO complied with the directives of the April 1998 remand. See Stegall v. West, 11 Vet. App. 268 (1998). ORDER Service connection for residuals of a neck injury is denied. Service connection for residuals of a back injury is denied. JANE E. SHARP Member, Board of Veterans' Appeals