Citation NR: 9731982 Decision Date: 09/19/97 Archive Date: 09/23/97 DOCKET NO. 95-09 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. Pomeranz, Associate Counsel INTRODUCTION The appellant served on active duty from July 1960 to April 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 1994 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Fort Harrison, Montana. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains that the RO erred in not granting the benefit sought. He states that during service, he injured his back while he was unloading a milk truck. he indicates that subsequent to this injury, he has suffered from chronic back pain. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the appellant’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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual, that his claim for service connection for residuals of a back injury is well grounded. FINDING OF FACT Although the appellant injured his back in service, no back disability was shown on his service discharge examination or on evaluation a few months earlier, and there is no competent, probative evidence showing a nexus between any current back disability and a disease or injury in service. CONCLUSION OF LAW The appellant’s claim for service connection for residuals of a back injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The threshold question that must be resolved with regard to a claim is whether the appellant has presented evidence of a well-grounded claim. A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. An allegation of a disorder that is service connected is not sufficient; the appellant must submit evidence in support of a claim that would “justify a belief by a fair and impartial individual that the claim is plausible.” See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. See Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). 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. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded; if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit, 5 Vet.App. at 93. Service connection may be established for disability resulting from injury or disease incurred in service or for a preexisting injury or disease that was aggravated by service. 38 U.S.C.A. § 1110. 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) (1996). A review of the service medical records reflects that in February 1961, the appellant was hospitalized at the George Air Force Base in California, after complaining of a back problem. At that time, the appellant stated he had attempted to arise from a sitting position after he had done some heavy lifting, when he had noticed a sharp pain in his back. The records show that upon admittance, the appellant was diagnosed with a strain of the ligaments in the lumbosacral area. It was noted that the injury was in the line of duty. While the appellant was hospitalized, he underwent a physical examination. At that time, the appellant complained of a hard, dull ache in his back. The examiner noted that the examination was essentially negative except for a spasm of the back, and that there was no obvious deformity. An x-ray of the appellant’s spine was reported as showing no abnormalities. Before the appellant was discharged from the hospital, the records show that the appellant’s back was much improved and that he had a full range of motion without tenderness or spasm. The appellant sought treatment for back pain in March 1962 and again in August 1962, after which he was hospitalized at the Homestead Air Force Base in Florida. The appellant stated that he had first injured his back while unloading a truck in February 1961. It was noted that the appellant had been hospitalized for the injury and given conservative therapy. The appellant indicated that since the injury, his back had bothered him intermittently with pain being caused by heavy lifting. The appellant reported that his superiors wanted him to do heavy work but that he was unable to do so because it caused his low back to ache. The appellant gave no history of pain radiating into the legs or of pain on coughing or sneezing. The examiner noted that there had been no apparent disturbance of sensation or muscle strength in the lower extremities. The examination showed that there was slight tenderness to deep palpation over the left lumbosacral joint. There was no tenderness over the spinous processes. The examiner noted that the appellant had complained of some back pain on complete flexion anteriorly and hyperextension of the trunk, but that he had a full range of motion in both movements. There was good lateral flexion and good rotary movement of the spine. There was no atrophy of the lower extremities. The diagnosis was of low back pain syndrome. The appellant was subsequently released from the hospital. In April 1963, the appellant sought treatment for complaints of back pain. At that time, he gave a history of his injury in 1961 and of subsequent intermittent back pain. The appellant was instructed to start flexion exercises. In January 1964, the appellant underwent an orthopedic examination. At that time, the appellant gave a history of his injury in 1961 and of his subsequent hospitalization and recovery. He stated that he was given a profile change which had expired in June 1962. Soon after, he reportedly had developed aching in his low back when asked to perform arduous activities. He reported that he had been hospitalized at Homestead Air Force Base. The examiner noted that there was no evidence of nerve recompression according to the record for that period. The appellant stated that since his second hospitalization, he had been kept on a profile change to avoid arduous activities. The examiner noted that at one time, the appellant was told to do Williams exercises, but that he had not been doing them. The physical examination showed a normal range of motion of the lumbar spine. There was no muscle spasm. There was no scoliosis. The pelvis was level. There were no areas of tenderness. Lateral bending and forward flexion were all normal. Straight leg raising was normal. Reflexes were normal. There was no atrophy. An x-ray of the appellant’s spine was reported to be within normal limits. There was no evidence of pathological change in the skeletal system. The impression was that there was no evidence of orthopedic disease found at that time. The examiner noted that there was a history of previous back ache. The appellant was considered fit for military service. In April 1964, the appellant underwent his separation examination. At that time, the appellant stated that he had a permanent back injury and that he had previously sought medical attention on two occasions for the injury. He indicated that he had been put on a permanent profile change, and that he was told that his injury would always exist. On physical examination, the appellant’s back was clinically evaluated as “normal.” Private medical records, from D. C. Gray, D.C., show that Dr. Gray treated the appellant intermittently for his back from March 1981 to December 1993, and that in March 1981, an x-ray examination showed that there was rotational subluxation, complex 4th and 5th lumbar vertebrae, and Grade I prolapse at the 4th and 5th lumbar discs. The diagnosis was Grade I sprain of the lumbar spine. The records show that Dr. Gray had noted that the appellant was a lathe operator. VA Form 21-4138, “Statement in Support of Claim,” dated in April 1994, shows that the appellant had contacted Dr. Lemley, a private chiropractor, and that Dr. Lemley’s office had informed the appellant that his records had been destroyed. The appellant stated that Dr. Lemley’s office had revealed that they only maintained records for 20 years. The appellant had previously indicated in his original November 1993 claim that he had sought treatment for his back injury from Dr. Lemley in 1973. A statement, dated in April 1994, from [redacted], was submitted to the RO on behalf of the appellant. The statement shows that Mr. [redacted] had served with the appellant while he was at the George Air Force Base in California and at the Homestead Air Force Base in Florida. According to Mr. [redacted], he remembered that the appellant had injured his back while at the George Air Force Base in the early part of 1961, but he was unable to remember how the appellant had injured himself. In April 1995, a hearing was conducted at the RO. At that time, the appellant testified that during service, he injured his back while he was unloading a milk truck. He stated that subsequent to the injury, he was hospitalized and put in traction. The appellant indicated that a physician had told him that he had a slipped disk and a pinched nerve. According to the appellant, the physician further stated that his disc would not heal and that he would have a problem with his back for the rest of his life. The appellant testified that he was hospitalized a second time in 1962, after he aggravated his initial back injury doing heavy lifting. The appellant stated that he was put in traction for a second time. Transcript. The appellant testified that subsequent to his separation, the he continued to have chronic back pain. He stated that instead of seeing a physician, he would “try to fight the problem,” and that he would “take it easy.” The appellant stated that there were times when he would have to walk humped over and would have to hold onto a wall or something so that he could stand up. The appellant indicated that he sought treatment for his back in 1973 from Dr. Lemley, a private chiropractor and that in March 1981, he sought treatment for his back from Dr. Gray, a private chiropractor. He stated that after he related to Dr. Gray the history of his back injury, Dr. Gray informed him that he had a herniated disc. Transcript. The appellant testified that his employment since his release from the military had primarily involved working in a logging mill. He stated that from 1964-1974, he drove a forklift, worked in a plywood mill, and drove a delivery truck. The appellant revealed that the job in the plywood mill was a labor job but that it did not involve a lot of bending. He testified that his logging mill work, starting in approximately 1974, included “scaling logs,” which did not involve any lifting or bending. In 1977, the appellant became a lathe operator and this work did involve lifting heavy equipment and parts. The appellant stated that in interviews, he did not report a history of back difficulty for fear of not being employed. Transcript. The appellant’s wife testified that she had married the appellant in 1965, shortly after his release from the military. The appellant’s wife stated that she most likely first noticed the appellant’s back problem within their first year of marriage. She indicated that he could not walk very far or do yard work very long without stopping to rest. She testified that he could not stand up straight and that his back pain would keep him up at night. She stated that he could not perform certain tasks at work because it would hurt his back Transcript. A letter from Dr. Gray, dated in May 1995, indicates that the appellant had been receiving intermittent treatment from Dr. Gray since at least 1981 for recurring low back pain and symptoms of disc protrusion at the L4-5 level. Doctor Gray stated that the appellant had expressed concern that his chronic back condition dated back to an injury while he was in the military in 1961. Doctor Gray noted that the appellant had related details of his injury and that his description of the urgency and symptoms of his injury suggested that he had herniated one of the lumbar discs. Doctor Gray stated that since the injury, the appellant had had chronic recurring disc protrusions for which he had treated on numerous occasions, and that lumbar x-rays taken in 1981 suggested some disc involvement. According to Dr. Gray, the 1961 back injury reported to him by the appellant certainly suggested the probability of a relationship. In Dr. Gray’s opinion, it was reasonable to assume that the injury of 1961 was to some degree causal to the appellant’s back problems over the last twenty years. An undated statement from the appellant’s former spouse, J. B., was submitted on behalf of the appellant and received by the RO in May 1995. The statement shows that Ms. B. was married to the appellant in November 1960. She stated that the appellant had lifted some milk cans and injured his back while he was in the military. She indicated that he was hospitalized for several days. Ms. B. maintained that in 1962 the appellant again injured his back during the Cuba Missile Crisis while lifting heavy supplies. At that time, she stated that the appellant was put in traction for approximately 4 days. Analysis To summarize the above, the appellant maintains that his current back disability is related to an in-service back injury and that subsequent to the in-service injury he had chronic back pain. The appellant has submitted statements from his former wife and from Mr. [redacted], who served in the military with him, in support of his contentions. In addition, the appellant’s wife testified in support of his claim. In this regard, such lay statements are considered to be competent evidence when describing observations or events. However, when the determinative issue involves a question of medical causation, only individuals possessing specialized training and knowledge are competent to render an opinion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The evidence does not show that the appellant, his wife, his former wife, or Mr. [redacted] possesses medical expertise, nor is it contended otherwise. In the instant case, the record shows that the appellant injured his back in February 1961, and that he was subsequently hospitalized and treated. However, at that time, an x-ray of the appellant’s spine was reported as showing no abnormalities and the examination was essentially normal except for a spasm of the back. In addition, before the appellant was discharged from the hospital, it was noted that the his back was much improved and that he had a full range of motion without tenderness or spasm. The record further shows that the appellant was hospitalized a second time for back pain in August 1962. However, while he complained of some back pain on complete flexion anteriorly and hyperextension of the trunk, he was noted to have a full range of motion. On special orthopedic evaluation in January 1964, three months prior to his separation, the impression was that there was no evidence of orthopedic disease found at that time. X-rays of the spine were normal. At separation, the appellant’s back was clinically evaluated as “normal.” Consequently, there were no findings or diagnoses of disc disease noted during service and no showing of a chronic back disorder in service in view of the 1964 service medical evidence. The first post-service medical evidence of problems with the appellant’s back is in March 1981, twenty years after the in- service injury. Even if, as he testified, the appellant was treated in 1973 by Dr. Lemley for his back, that was more than ten years after his in-service injury. As previously stated, there must be medical evidence showing a nexus between an in-service injury or disease and the current disability for the claim to be well grounded. The United States Court of Veterans Appeals (Court) has held that statements from doctors which are inconclusive as to the origin of a disease cannot fulfill the nexus requirement to ground a claim. Warren v. Brown, 6 Vet.App. 4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). However, the Court has recently held that the use of cautious language does not always express inconclusiveness in a doctor’s opinion on etiology, and such language is not always too speculative for purposes of finding a claim well grounded; the opinion must be viewed in its entire context. Lee v. Brown, No. 96-344 (U.S. Vet.App. June 27, 1997). The treatment records from Dr. Gray do not contain any history, remote or recent, or other indication of a relationship between the appellant’s post-service back problems and service. Therefore, these records do not show a nexus between the appellant’s in-service back injury and his current back disability. In May 1995, Dr. Gray stated that the appellant had been a patient since at least 1981 for recurring low back pain and symptoms of disc protrusion. However, the earliest office records provided are dated in 1981, and reflect a diagnosis of lumbar spine sprain even though X-rays reportedly showed some disc abnormalities. In his 1995 letter, Dr. Gray noted that the appellant had related to him the details of an injury in 1961 and that according to the “urgency and symptoms,” it was Dr. Gray’s opinion that the appellant had herniated one of the lumbar discs. However, Dr. Gray did not report what the claimed symptoms were. The service medical records contain no indication of disc disease and show that the veteran did not having radiating pain; moreover, the special orthopedic evaluation shortly before the appellant’s discharge from service showed no evidence of orthopedic disease and spinal X-rays were The Board has considered Dr. Gray’s statement that it was “reasonable to assume” that the appellant’s injury of 1961 was to some degree causal to the appellant’s back problems over the last twenty years, and that the history given by the appellant of his in-service injury certainly suggested “the probability of relationship,” between the appellant’s current back pain and his in-service injury. When read in its entire context, Dr. Gray’s opinion is tends to be speculative. More importantly, it is not shown to have been based on a review of the service medical records or any prior medical evidence. Therefore, Dr. Gray’s opinion was based entirely on a history related by the appellant and can be no better than the facts alleged by him. Elkins v. Brown, 5 Vet.App. 474, 478 (1993). There is nothing to indicate that Dr. Gray reviewed the appellant’s service medical records, records of any earlier post-service treatment, or any other documents from which he could have formed an opinion “based on independent grounds.” See Kightly v. Brown, 6 Vet.App. 200, 205 (1994). The Board notes that the appellant’s April 1964 separation examination shows that at that time, the appellant had indicated that he had a permanent back injury and that a physician had told him that his injury would always exist. The appellant repeated this claim in his April 1995 hearing. However, a statement by the appellant as to what a doctor told him is insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet.App. 4, 6, (1993). Therefore, as there is no probative, competent medical evidence showing a nexus between the appellant’s current back disability and the in-service back injury, the appellant’s claim must be denied as not well grounded. Although the Board has disposed of this claim on a ground different from that of the RO, that is, whether the appellant’s claim is well grounded rather than whether he is entitled to prevail on the merits, the appellant has not been prejudiced by the Board’s decision. In assuming that the claim is well grounded, the RO accorded the appellant greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). The Court has held that there was some duty to assist the veteran in the completion of the application for benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1997). Beausoleil v. Brown, 8 Vet.App. 459 (1996); and Robinette v. Brown, 8 Vet.App. 69 (1995), as modified in this context by Epps v. Brown, 9 Vet.App. 341, 344 (1996), wherein the Court found that a duty to further assist in the development of the evidence when the veteran has reported the existence of evidence which could serve to render a claim well grounded. The facts and circumstances of this case are such that no further action is warranted. ORDER Entitlement to service connection for residuals of a back injury is denied. JANE E. SHARP Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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. - 2 -