Citation Nr: 0003757 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 95-326 98 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a claimed low back disorder. 2. Entitlement to service connection for a disability manifested by drug addiction. 3. Entitlement to service connection for human immunodeficiency virus (HIV)-related disability. ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to April 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1994 rating decision of the RO. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. No competent evidence has been submitted to show that the veteran has current low back disability due to disease or injury which was incurred in or aggravated by service. 3. The veteran, who has not been granted service connection for any disability, filed his claims asserting secondary service connection for disability manifested by drug addiction and HIV-related disability after October 31, 1990. 4. The veteran is shown to suffer from primary drug abuse due to his own willful misconduct. 5. The veteran is shown to suffer from HIV and AIDS-related disability caused by his abuse of intravenous drugs. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim of service connection for a low back disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. The veteran's claim of service connection for a disability manifested by drug addiction filed after October 31, 1990 must be denied by operation of law. 38 C.F.R. § 3.301(a) (1999). 3. The veteran's claim of service connection for HIV-related disability filed after October 31, 1990 must be denied by operation of law. 38 C.F.R. § 3.301(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background A careful review of the veteran's March 1972 report of enlistment medical examination shows that no disqualifying defects or communicable diseases were discovered. The report also noted the condition of the veteran's spine as "normal." A March 1973 entry in the veteran's service medical records noted that the veteran reported to the Hospital at George Air Force Base with back pain. An April 1973 physical profile report noted that the veteran had improperly used drugs and stated that the veteran had tested positive on March 23, 1973 and April 9 and 11, 1973 for barbiturates. The veteran's service medical records also included an April 1973 report of medical history in which the veteran indicated that he had never experienced recurrent back pain. An April 1973 report of separation medical examination noted the condition of the veteran's spine as "normal" and that the veteran denied drug use "and all other significant medical or surgical history." The veteran filed his initial claim for disability compensation in March 1993. The record includes private medical treatment reports dated in 1982 which indicated that the veteran had been treated for pain of the neck, low back, left hip and left buttock. A March 1982 entry noted that the veteran attributed the onset of his disability to a December 1981 motor vehicle accident and that he had "sustained a whiplash type injury to his neck and a jarring injury to his low back." An April 1982 entry noted that the veteran reported a severe increase in pain after a lot of heavy lifting. In a May 1982 entry, it was noted that the veteran attributed his continued pain to "a motor vehicle accident in October." The entry also indicated that the veteran admitted to a "heroin problem." An August 1982 private medical report noted that the veteran had been in a December 1981 automobile accident and had persistent low back pain. The report also noted that, during the same period, the veteran began to use "heroin and other street drugs to control his pain." Additionally, the report stated that the veteran had "a history of back injuries dating back to 1972." An October 1982 private hospital admission record noted a history of an automobile accident in December 1981 and listed the veteran's admitting diagnoses as being those of back pain, drug addiction and depression. A March 1991 report of private medical treatment regarding low back pain noted that the veteran had fallen in September 1990 and injured himself at work. The report noted that a prior "B-200 evaluation" showed a non-physiologic response, which was suggestive of misrepresentation of the veteran's "ability to move his lumbar spine in different planes." The report also indicated that the veteran's use of his Clonidine prescription had been "very inappropriate and even dangerous." The primary diagnosis was noted as being depression, "likely related to his work injury." The report also noted that nothing consistent from an objective standpoint could be correlated with the veteran's subjective symptoms. A January 1992 private medical report noted that the veteran had "degenerative disc disease at L4-5 and L5-S1 as well as lateral recess spinal stenosis." The report also stated that the veteran was "totally disabled from work due to the severity and persistence of [his] pain related to his severe disc degeneration at L4-5 and L5-S1." In a February 1994 written statement, the veteran indicated that he had been treated for an in-service back injury and diagnosed as having muscle strain. The veteran stated that he began to drink and use heroin to ease the pain and had struggled with drugs since that time. The record also included an April 1995 AIDS Project Los Angeles Diagnosis Form which stated that the veteran had been diagnosed with acquired immune deficiency syndrome (AIDS) in 1986 and noted his "transmission category" as "IV drug use." The medical record also stated that the veteran was "unable to work due to HIV disease." The reason of the veteran's inability to work was reported by the physician as "[b]ack injury - degenerative spine/disc disease - HIV- related." A September 1995 VA report of psychiatric discharge summary listed the veteran's discharge diagnoses as being inactive cocaine and heroin dependence, HIV, hepatitis C, insulin- dependent diabetes mellitus and chronic back pain. The report noted that he had been diagnosed as being HIV positive in 1986 and had injured his back while lifting heavy sandbags in the military. The report also noted that the veteran had served in the military in 1972 and 1973 and stated that the veteran had began to use heroin intravenously at age 17 and "became addicted by 1979, while he was in the military." An October 1995 report of VA medical evaluation noted that the veteran reported that he had injured his low back in 1972 and had numerous subsequent evaluations for low back pain. The report also noted that the veteran reported that he had tested positive for HIV in 1986 and that he had developed hepatitis B and C in 1994. The report listed diagnoses of chronic low back pain with normal range of motion, HIV positive by history and history of hepatitis B and C. A VA report of domiciliary care dated from May to November 1996 noted that the veteran had been diagnosed as HIV positive "in 1986 secondary to use of heroin by exchanging needles." The report also noted that, at that time, the veteran was HIV positive and asymptomatic. The record also included VA outpatient progress notes from dated from May 1997 to March 1998 which included multiple diagnoses of HIV, back pain and drug abuse. VA progress notes dated from February to June 1997 also included several diagnoses of HIV and noted the veteran's history of endocarditis, pneumonia, oral thrush, fatigue and memory loss. II. Low Back Disorder Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (the "Court") has further 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, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order for the claim of service connection to be well grounded, there must be competent evidence of: (1) an in- service injury or disease; (2) a current disability; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In regard to establishing a well-grounded claim, the second and third Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id at 496. The evidentiary assertions by a claimant are accepted as true for purposes of determining whether a claim is well grounded, except where the evidentiary assertions are inherently incredible or beyond the competence of the person making them. King v. Brown, 5 Vet. App. 19 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). As mentioned hereinabove, in order for the claim of service connection to be well grounded, there must be competent evidence of a current disability, an in-service injury or disease and a nexus between the current disability and the in-service injury or disease. Caluza, 7 Vet. App. at 506. For the purposes of determining whether the claim is well grounded, the record indicates that the veteran has current back disability, as the January 1992 private medical report noted "degenerative disc disease at L4-5 and L5-S1 as well as lateral recess spinal stenosis." Additionally, for the purposes of determining well groundedness, the record can be read to support that the veteran had an in-service injury or disease, as the March 1973 entry in his service medical record noted that he had complained of back pain. However, the record contains no medical evidence establishing a nexus between the currently demonstrated low back disability and any injury or disease which was incurred in or aggravated by service. Indeed, the April 1995 AIDS diagnosis form suggested that the veteran's back disability was HIV- related. A March 1982 private medical record had attributed his back disability to a December 1981 motor vehicle accident, and an April 1982 entry related his pain to heavy lifting. Furthermore, a May 1982 entry attributed his disability to "a motor vehicle accident." Finally, a March 1991 private medical report related the veteran's back symptoms to a September 1990 work-related injury. Although the veteran asserts that his current back disability is due to his in-service back injury, the record contains no medical evidence connecting the claimed disability to an injury or disease in service. As noted hereinabove, where a determinative issue involves a question of medical diagnosis or causation, competent evidence is required to render the claim plausible. See Grottveit v. Brown, 5 Vet. App. at 93. As a lay person, the veteran is not competent to make such a determination. See Espiritu v. Brown, 2 Vet. App. 492 (1992). Because the veteran has not submitted competent evidence of a nexus to service, the Board finds that the claim of service connection for a low back disorder is not well grounded. See Caluza v. Brown, 7. Vet. App. at 506. In claims that are not well grounded, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that a remand is not required in this case. The veteran has not put VA on notice that competent evidence exists that supports his claim of service connection for low back disability. By this decision, the Board is informing the veteran of the evidence necessary to make his claim as set forth hereinabove well grounded (i.e., competent medical evidence establishing a nexus between any current back disability and any injury or disease incurred in or aggravated by service). III. HIV-related Disability and Drug Addiction VA regulations prohibit granting direct service connection for claims filed after October 31, 1990 when a disability is the result of the veteran's abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). The abuse of drugs is defined as "the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects." 38 C.F.R. § 3.301(d) (1999). 38 C.F.R. § 3.301(a) is a bar to direct service connection. The record indicates that the veteran asserts that his drug addiction has resulted from his attempts to manage the pain secondary to a claimed in-service back injury. The Board notes that 38 C.F.R. § 1110 does not preclude an award of secondary service connection for disability due to alcohol and drug abuse, but only payment of compensation. See Barela v. West, 11 Vet. App. 280, 283 (1998). A disability which is the proximate result of a service- connected disease or injury shall be service connected. 38 C.F.R. § 3.310. However, his claim of service connection for a back disorder has been denied in this case. As service connection has not been granted for any disability, the current claim of secondary service connection also must be denied. The record indicates that the veteran's HIV and AIDS-related disability was not clinically manifested until many years after service. Furthermore, the record contains no medical evidence establishing a nexus between the currently demonstrated HIV and AIDS-related disability and any innocently acquired disease or injury which was incurred in or aggravated by service. See Caluza v. Brown, 7. Vet. App. at 506. The competent evidence of record establishes that the veteran became HIV positive and contracted AIDS as the result of his intravenous use of drugs after service. 38 C.F.R. § 3.301(a) prohibits the grant of service connection in this case as the veteran's HIV and AIDS related-disability is shown to be the direct result of the veteran's drug abuse of willful misconduct origin. In a case such as this one, where the law and not the evidence is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As the veteran has not been determined to have a service- connected disability, there can be no basis for his claims of secondary service connection. Accordingly, the veteran's claim of service connection for disability manifested by drug abuse and HIV-related disability must be denied by operation of law. ORDER As the claim of service connection for low back disability is not well grounded, the appeal is denied. The claim of service connection for disability manifested by drug addiction is denied. The claim of service connection for HIV-related disability is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals