93 Decision Citation: BVA 93-03604 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-53 113 ) DATE ) ) ) THE ISSUES 1. Service connection for residuals of a back injury. 2. Whether a claim for service connection for diabetes mellitus is well grounded. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William L. Pine, Associate Counsel INTRODUCTION The veteran served on active duty from January 1944 to November 1945. In September 1966, the appellant filed a claim for service connection for a back disorder, based on a reported injury in January 1945. Service enlistment and separation examination records were in the file, and another request for medical records pertaining to a back condition was sent to the National Personnel Records Center. In November 1966, the Department of Veterans Affairs (previously Veterans Administration) (VA) Regional Office (VARO) wrote to the appellant, informing him that service medical records were being requested in order to confirm treatment for a back condition and informing him that if treatment were confirmed, he would have to provide evidence of the continued existence of the condition. Some additional service medical records were received in December 1966. A decision was not entered regarding the claim, and no further communication between VARO and the appellant regarding the claim is of record until two decades later. Although the record indicates that VARO considered the claim to have been abandoned, it was incumbent upon VARO to issue a rating decision, which it did not do until much later. Hence, the claim of service connection for a back disorder, filed in 1966, was pending at the time of an October 1986 adjudication. In May 1986, the appellant filed a claim for a permanent and total disability rating for pension purposes. VARO considered the previous claim for service connection for a back condition, granted pension benefits and denied the service connection claim. The appellant was informed by letter of the denial and of his appellate rights in November 1986. He did not appeal within one year. In May 1989, the appellant requested that his claim for service connection for a back injury be reopened. VARO denied his claim and so informed the appellant by letter in June 1989. He filed a notice of disagreement with VARO in February 1990. VARO issued a statement of the case in March 1990. The appellant filed a substantive appeal to the Board of Veterans' Appeals (Board) in April 1990. In his appeal, he raised a claim for service connection for diabetes. VARO denied service connection for diabetes mellitus in a rating decision of May 1990. The appellant was so notified by letter in June 1990. He filed a notice of disagreement in July 1990, and VARO issued a supplemental statement of the case on the issue of service connection for diabetes mellitus in August 1990. The appellant perfected his appeal from the May 1990 rating decision in September 1990. The case was certified for appeal, and was received by the Board in December 1990. In May 1991, the Board rendered a decision denying the appellant service connection for a back injury and for diabetes mellitus. The appellant filed a timely appeal from the Board's decision with the United States Court of Veterans Appeals (the Court). 38 U.S.C.A. § 7266 (West 1991). In an order dated July 28, 1992, the Court vacated the Board's May 1991 decision, retained jurisdiction, and remanded the case to the Board with instructions to assist the appellant in the development of the record by obtaining certain medical reports. The Board was then directed to reconsider the appellant's claim in light of all available evidence and to provide reasons and bases for the decision. The Court ordered the Board to issue its supplemental decision within 120 days after the date of the order. [citation redacted]. In August 1992, Disabled American Veterans, the appellant's accredited representative, submitted an informal presentation styled "COVA Supplemental Argument." The Board remanded the case to VARO on August 14, 1992, to effect the assistance to the appellant mandated by the Court's order and to readjudicate the claim and return the case to the Board by October 1, 1992. The Court ordered that VA assist the appellant to obtain medical records from the Kingsbridge, Brooklyn, and Miami VA Medical Centers (VAMC);and from the Brooklyn Jewish Hospital and the Osteopathic Hospital in Miami. VARO had requested records in October 1990 from the Brooklyn Jewish Hospital and from Dr. Pappas (named by the appellant on his release of information) at The Osteopathic Hospital, but received no response. In August 1992, VARO specifically requested treatment records for the period from 1940 to 1949 from VAMC Miami. In October, VAMC Miami responded that no records were retrievable. VARO requested records from the late 1940's from VAMC Kingsbridge and from VAMC Brooklyn. The former responded that after a thorough search, no records were located. The latter notified VARO that old medical records were retired to the Bayonne, New Jersey, records center, and records predating 1965 were destroyed and no copies kept. In November 1992, VAMC Miami located an admission record (index card) showing admission in June 1977 and in December 1983, but not the reasons for admission or any medical information. VAMC Miami stated it was searching for those old volumes and subsequently informed VARO that no records could be located predating 1977. In October 1992, VARO again requested information from Brooklyn Jewish Hospital and from Dr. Pappas (at a different address from that used previously). Dr. Pappas replied in November 1992 that he had no records on the appellant and that he destroyed records after seven years. In December 1992, Interfaith Medical Center (formerly Brooklyn Jewish Hospital) informed VARO that it had no record of having treated the appellant and that it destroyed all inactive records from the 1960's and earlier. On November 24, 1992, the Acting Secretary of Veterans Affairs filed a motion with the Court for an extension of time until February 23, 1993, to issue a supplemental decision in response to the Court's order of July 28, 1992. The Court granted the motion in an order of December 8, 1992, ordering an extension of time until February 23, 1993. [citation redacted]. VARO issued a rating decision on December 7, 1992, and a supplemental statement of the case on December 11, 1992. VARO transferred the claims folder to the Board, where it was received January 4, 1993. Disabled American Veterans submitted another "COVA Supplemental Argument" on that date. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has submitted evidence that is new and material to his claim for service connection for residuals of a back injury. He argues that the claim should be reopened and granted based on the complete body of evidence of record. He also contends that he should be granted service connection for diabetes mellitus as a result of military service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), the Board has reviewed and considered all relevant evidence and material of record in the veteran's claims file and for the following reasons and bases, it is the decision of the Board that the appellant has submitted new and material evidence sufficient to reopen the claim for service connection for residuals of a back injury, that service connection for residuals of a back injury is not warranted, and that the appellant has not met his statutory burden of submitting evidence sufficient to justify the belief that the claim for service connection for diabetes mellitus is well grounded. FINDINGS OF FACT 1. The appellant is a veteran of combat with the enemy. 2. A claim for service connection for residuals of a back injury was denied by a rating decision of October 1986. 3. The appellant was notified of the rating decision and of his appellate rights by letter dated in November 1986; he did not appeal within one year of that date. 4. The appellant submitted two lay statements in September 1989 in support of his claim for service connection for residuals of a back injury that are so significant that they must be considered to fairly decide the claim. 5. Available service medical records do not contain evidence of a back disability resulting from an injury, or the presence of diabetes mellitus. 6. On examination for separation from service the appellant reported being involved in a plane crash in England, but gave no history of a back injury; the physical examination was negative for musculoskeletal defects. 7. The appellant is currently diagnosed with degenerative joint disease of the lumbosacral spine. 8. The appellant's statements that he sustained an injury in service resulting in a chronic low back disability are not factually substantiated. 9. The lay statements submitted in support of the appellant's claim are based on the appellant's report of having suffered an injury in service resulting in disability, are not satisfactory evidence of the incurrence of a back injury, and are not probative evidence of the presence of any specific low back symptomatology following service. 10. The appellant's current low back disorder, degenerative joint disease of the lumbosacral spine, is not a residual of any incident of service, nor has it been established as being present to a degree of 10 percent disabling within one year of separation from service. 11. The appellant has not submitted evidence that diabetes mellitus, first diagnosed in 1986, began in service. CONCLUSIONS OF LAW 1. The October 1986 rating decision denying service connection for a back condition is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1992). 2. New and material evidence has been presented in support of the claim for service connection for residuals of a back injury, such as to warrant reopening the claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1992). 3. Disabling residuals of a back injury, including degenerative joint disease of the lumbosacral spine, were not incurred in or aggravated by wartime service, and the incurrence during service of degenerative joint disease of the lumbosacral spine cannot be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303(b), 3.304(d), 3.307, 3.309 (1992). 4. A claim for service connection for diabetes mellitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Back Injury The appellant has "submitted a well-grounded claim that he had injured his back while on active duty during World War II and ha[s] received medical treatment for a back disorder continuously since that time." [citation redacted]. VA has undertaken exhaustive efforts to obtain medical records evidencing the alleged continuous treatment for that disorder, without success. As to the specific assistance ordered by the Court, VA's duty to assist the appellant, 38 U.S.C.A. § 5107(a) (West 1991), is considered to have been discharged. We now proceed to a decision on the merits. A. History In September 1966, the appellant filed a claim for service connection for a back condition, allegedly the result of a plane crash in January 1945. VARO initiated attempts to procure evidence pertaining to the claim, but after the initial notification of that to the appellant, no action was taken with respect to the claim until 1986. In October 1986, VARO adjudicated the claim for service connection for a back condition based on history reported in a VA examination conducted in conjunction with a claim for pension benefits. VARO reviewed service medical records and VA examination and outpatient report of 1986, finding that service connection was not warranted because there was no evidence that the appellant sustained a back injury in service, and that degenerative joint disease of the lumbosacral spine was not shown to be related to service through evidence of continuity of symptoms or treatment. The appellant was informed of that decision and of his appellate rights, but did not appeal. In May 1989, when the appellant requested to reopen his claim for service connection for a back injury, he stated that he had just learned that his service medical records had not been burned, as he had been led to believe for years. He alleged that during service he slipped on ice climbing out of a plane at an air-sea rescue base in Scotland and was placed in traction for three days at the base hospital. He submitted no evidence in support of his request, and VARO denied the claim as "duplicative", so informing the appellant by letter. The appellant was also informed that the 1986 decision was final. He submitted additional evidence in September 1989 and VARO found that evidence not to be new and material in a rating decision issued during that month. The instant appeal has ensued. B. Whether New and Material Evidence has been Submitted to Reopen the Previously Denied Claim The claim may now be reopened if the appellant presents new and material evidence with respect to the claim previously disallowed. 38 U.S.C.A. § 5108 (West 1991). "New evidence is not that which is merely cumulative of other evidence on the record." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (citations omitted). "Material evidence is relevant and probative of the issue at hand." Id. The appellant has submitted two lay statements. Both are undated and unsworn. One states, verbatim, "I have known [the appellant] for over fifty (50) years. I remember that when he came out of service he complained that he hurt his back in the service. Over the years I have heard this same complaint repeatedly." The other states, verbatim, "I have known [the appellant] all of his life. He had hurt his back while in service overseas when he was in the Air Force. He has had trouble with his back ever since." It is the opinion of the Board that the two lay statements satisfy the regulatory definition of new and material evidence, 38 C.F.R. § 3.156(a), and moreover, meet the test set forth by the Court. Colvin, 1 Vet.App. at 174 ("[T]o justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome."). The statements are evidence indicative of the veteran having suffered a back injury in service resulting in current disability. Having found that the appellant has submitted new and material evidence, the claim is reopened. 38 U.S.C.A. § 5108 (West 1991). Submission of new and material evidence "does not mean that the claim will always be allowed, just that the case will be reopened and the new evidence considered in the context of all the other evidence for a new determination of the issues." Smith v. Derwinski, 1 Vet.App. 178, 180 (1991). "Any new and material evidence should be viewed as true for the limited purposes of reopening a final decision. It should be weighed for its persuasiveness or credibility after the finality veil is lifted--not before." Blanchard v. Derwinski, 3 Vet.App. 300, 303 (1992) (Nebeker, C.J., concurring). C. The Facts The service medical records include a report of physical examination prior to entrance, at which time no disabilities were noted. The appellant was treated for bilateral metatarsalgia in February 1944. He was seen for dental examinations or treatment several times in service. His Enlisted Record and Report of Separation reveals that he was in the European theater of operations from October 9, 1944 until he arrived back in the United States on June 6, 1945. He served as an aerial gunner. It was noted that he received no wounds in action. The only service medical record available from that period is a dental identification form of October 1944. In August 1945 the appellant was seen for complaints of low frontal headaches of seven months duration. The record is silent as to any cause or precipitating incident. Mucopurulent discharge from the superior meatus on the left was noted. X-rays were ordered, but no report is of record. Acute nasopharyngitis was diagnosed in September 1945, and that diagnosis was repeated in October 1945. The appellant had a physical examination prior to his discharge on November 6, 1945. The examination report reveals history from the appellant, to the effect that he did not then have any currently disabling wound, disease, or injury. The form required the examinee to report all significant diseases, wounds and injuries along with the circumstances under which wounds or injuries were incurred and the time of onset. The appellant reported frostbite of the face as a result of high altitude flying in Germany in 1945, for which he was hospitalized for two days. The appellant also reported headaches in the frontal region since a plane crash in England. Both the frostbite and the headaches were recorded as incurred while in military service and not presently disabling. The physical examination was negative for musculoskeletal defects. The appellant filed his initial claim for VA disability benefits in June 1947 for sinusitis and headaches, which he reported as beginning in 1944. He reported treatment of his sinuses in 1944 and 1945 at basic training at Kessler Field, Mississippi and at the base hospital at Enid, Oklahoma. He made no reference to back problems and reported no history of treatment for a back injury while overseas. He submitted a statement from a private physician in July 1947, reporting treatment for sinusitis in November and December 1945. When the appellant filed his original claim for service connection for a "back condition" in 1966, he reported that it began in January 1945 as a result of a plane crash. VARO informed the appellant that his service medical records would be requested and if they confirmed treatment for a back condition, it would be necessary for him to submit evidence showing the condition existed from the date of discharge to the present. He was informed that lay statements could be submitted, stating the date the condition was first observed, just what was observed and the association with the appellant that enabled the observation. The appellant did not respond and VARO did not contact him following receipt of service medical records. The appellant reopened his claim in May 1986. The medical records obtained by VA, in addition to those described above, were VA outpatient records from January to June 1986, showing a diagnosis of Diabetes Mellitus, degenerative joint disease (site unspecified), neck pain and cervical spondylosis. The records reported on the progress and treatment of diabetes and on ophthalmologic examinations. On VA examination in August 1986, the examiner noted the diagnosis and treatment of diabetes, bilateral cataracts and recent left lens implant. The appellant reported that he could walk two miles. The examiner could not elicit symptoms of claudication, although the appellant reported night cramping in the calves and feet. The appellant reported that he injured his back in the service in the 1940's, was hospitalized and placed in traction. He stated he had had pain in the lumbosacral area radiating into the left buttock and that forward bending or heavy lifting produced severe pain in the back. He expressed caution about doing physical activities because of discomfort and he felt his gait was compromised. The examiner found his gait to be normal. On examination the appellant could flex the lumbar spine to 80 degrees, and extend to 30 degrees. Lateral flexion and rotation were each 30 degrees bilaterally. Straight leg raising was negative, bilaterally. Deep tendon reflexes, motor and sensory functions were normal bilaterally for both lower extremities. Percussion over the lumbosacral spine elicited no symptoms. X-ray findings suggested moderate to severe degenerative joint disease of the lumbosacral spine. The diagnosis was lumbosacral degenerative joint disease. The appellant underwent an appendectomy at VAMC Miami in October 1990. An abdominal x-ray taken at that time revealed spondylosis of the lumbosacral spine. D. Analysis The objective medical evidence does not establish entitlement to service connection for residuals of a back injury. No back injury is shown in service; no treatment is shown after service; and the first diagnosis of degenerative joint disease of the lumbosacral spine was in 1986, 40 years after separation. The appellant cannot establish by medical evidence that he was 10 percent disabled by degenerative joint disease within one year of separation and therefore is not entitled to a presumption of its incurrence in service. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1992). There is no demonstrated continuity of complaints or treatment for specific back pathology from service separation to 1986. 38 C.F.R. § 3.303(b) (1992). The separation examination report of November 1945 contains history of the appellant's hospitalization and of a plane crash in England. Records of the reported hospitalization are not on file, and, therefore, we conclude that the service medical record is probably incomplete. In the face of lost records, the Board "bears a heightened obligation to 'explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.'" Sussex v. Derwinski, 1 Vet.App. 526, 528 (1991) (quoting O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991)). The appellant served in combat, and special rules of evidence apply in this case regarding proof of service connection with lay evidence and the resolution of reasonable doubt. 38 U.S.C.A. § 1154(b) (West 1991); Sheets v. Derwinski, 2 Vet.App. 512 (1992). 38 U.S.C.A. § 1154(b) provides as follows: In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service- connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. The lay evidence to be considered here must include the appellant's statements, as well as the two lay statements quoted above. The central issue is whether this lay evidence is "satisfactory lay . . . evidence" within the meaning of section 1154(b) (emphasis added). If it is, service connection is proven unless rebutted by clear and convincing evidence. Id. If the evidence is not "satisfactory," it is not proof of service connection by itself as a matter of law, and the clear and convincing evidence standard need not be met to rebut service connection. "Satisfactory" is not defined in law or regulation. The Court has provided guidance on the competence of lay witnesses. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). We conclude that lay evidence is satisfactory when it contains facts which are within the provider's area of competence, i.e., not expressing conclusions that require expertise not possessed by the lay person, and otherwise is credible and probative. We consider first the appellant's statements as lay evidence. The credibility of the appellant's allegation of a back injury in service is suspect because of unlikely omissions in the available service medical records, above and beyond those that would be explained by missing records, and because of inconsistencies in the appellant's history as it has evolved during the pendency of his claims. It must be conceded, on the record that is available, that the veteran was in a plane crash. The complaint of headaches of seven month's duration in August 1945 may refer to the onset of headaches shortly after January 1945, the date of the reported plane crash. If the veteran had, at the time of the complaint, given a history of a plane crash and head injury, as would be expected, such history should have been recorded by medical personnel. No inference may be drawn, however, from the lack of this history in the clinical records of August 1945. Nevertheless, the available service records do not show complaints or symptoms relating to the appellant's back recorded at any time. The service medical records are completely silent as to a back injury in service. This is the case even where it would be expected that such injury would have been reported, and where such information was solicited and the time would have been opportune for reporting such injury, i.e., at the time of the separation examination. The fact that he reported frostbite related to flying and a two-day hospitalization for that, and that he reported a plane crash and headaches related to that, makes it unlikely, in our opinion, that he would have neglected to report a back injury, sustained in or following a plane crash, so severe that it required three days or more of traction, as is now averred. Such an omission cannot be accounted for by missing records. The separation examination report with the veteran's history of injuries suffered during service is of record; while frostbite related to flying and headaches resulting from the plane crash are indicated, no mention is made of a back injury resulting from the crash. The credibility of the separation examination has not been rebutted, and it is plausible to conclude that the separation report contains a complete and accurate history supporting a finding of no back injury in service, corroborated by the negative findings with respect to the back on examination. We also find the failure of appellant to claim service connection for residuals of a back injury when he made his first claim for disability benefits in 1947 to be inconsistent with the 1966 claim concerning his back and his current allegation that his back has bothered him continuously since January 1945. See Baker v. Derwinski, No. 90-1056 (U.S. Vet. App. Dec. 27, 1992) (memorandum decision) (failure to include alleged service-connected disability in prior benefits claims as element of evidence against current claims). He has maintained that he was treated over the years, beginning in the late 1940's, at three VA and two private medical facilities, yet he submitted no medical records of, or reference to, such treatment with his initial claim. He reported treatment in his claim in September 1966. When informed in 1966 of the necessity of providing evidence to corroborate his claim, he did not respond, even though, according to his statements in the instant appeal, he would have been undergoing treatment at about that time. Now, through passage of time, such records, if they ever existed, are unobtainable. In light of the whole evidentiary history of this case, we cannot accept the bare allegation that he was treated for back problems ever since service as sufficiently probative of the presence of a disability of the lumbar area of the spine since service. The appellant has reported incurring a back injury in a plane crash in January 1945 since he submitted his claim in 1966, but details of the events have emerged slowly and his reports have been inconsistent as to the location of the event and the length of subsequent claimed hospitalization. The September 1966 claim reported treatment for a back injury in Norwich, England, and at Enid, Oklahoma, in 1945. In May 1989, he reported that he injured his back when he slipped on ice climbing out of a plane in Scotland, spending three days in traction at the Air-Sea Rescue Base hospital there. In April 1990, he reported that the base was in England, where his plane effected an emergency landing because of damage sustained during a bombing run, and that he slipped on ice while climbing out of the belly of the plane, falling to the ground, and that he was in traction for two weeks before returning to his assigned base. We find the discrepancies as to how the alleged injury occurred, the location and the duration of the treatment by traction, particularly damaging to the credibility of the various reports. The appellant argues that the service medical records which would prove his claim must not have been consolidated with his main medical file and that he should be granted service connection because the injury he claims is consistent with the type, place and circumstances of his service. The alleged injury may be consistent with the "places, types and circumstances" of his service, 38 C.F.R. § 3.303(a) (1992), and the loss of medical records may be "consistent with the circumstances, conditions or hardships" of his service, 38 C.F.R. § 3.304(d) (1992). Nonetheless, while those regulations set the standards for evaluating the evidence, the determination of entitlement to service connection must be based on the quality of the evidence itself. Where the evidence is not credible or probative, i.e., "satisfactory," 38 U.S.C.A. § 1154(b) (West 1991), its consistency with the circumstances of service will not alone establish entitlement to service connection. The crux of the appeal is whether the two lay statements are sufficient to establish his claim in the absence of official records of the claimed injury. 38 U.S.C.A. § 1154(b) (West 1991). We find that they are not satisfactory lay evidence. The Court has delineated the area of competence of lay evidence in Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In that case, the Court excluded, generally, as not being competent, lay statements that require the qualification of particular expertise, e.g., medical diagnoses or opinions (allowing for the possibility of exceptions as to unspecified areas of expertise). Id. at 494-95. The Court acknowledged, generally, that lay testimony is competent as to empirical observation, e.g., eye-witness accounts of visible symptoms. Id. In the instant appeal, the lay statements do not purport to be eye witness accounts of the injury or based on first hand knowledge of the veteran's hospitalization for a back injury. They indicate only that the appellant said he injured his back in service, but make no reference as to how the injury occurred. They report no personal observations. Even conceding that they are credible statements that the appellant complained of back problems for years after service, they do not relate any specific deficits he may have suffered, such as limping, limiting strenuous activity, exhibiting pain on movement, etc., or otherwise satisfy those elements of proof of an injury in service that lay statements are competent to establish. The Court has provided some guidance on the quality of lay evidence that might be satisfactory under section 1154(b). See Sheets v. Derwinski, 2 Vet.App. 512 (1992). In Sheets, the Court noted that the lay statements included "descriptions of Mr. Sheets' isolation from neighbors and relatives, his violent anger," and other symptoms of the claimed disability within the competence of lay persons to report. Id. at 514. The inference to be drawn from Sheets was that the lay evidence, if otherwise proven credible, was of satisfactory quality, i.e., within the area of competence of those relating it. The lay evidence described in Sheets is in accord with the quality of competent lay evidence described in Espiritu and in marked contrast to the lay evidence in the instant appeal. The two lay statements in the instant appeal are distinguishable from those of record in Sheets. We note a paucity of detail gained from personal observation reported in the lay statements in the instant claim. Given that the appellant's statements as to the claimed back injury are not found to be credible, we cannot find the reiteration of those statements derivatively through other lay persons to be probative of whether the appellant sustained a back injury in service. Finally, we must give the appellant the benefit of the doubt, or explain why the doctrine does not apply. 38 U.S.C.A. §§ 1154(b), 5107(b) (West 1991); Sheets, 2 Vet.App. at 516; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). To find this body of evidence in equipoise, we would have to conclude that the failure to report a back injury at separation, the failure to claim a low back disability when initially claiming benefits, and the failure of the writers of the lay statements to report any observation of behavior demonstrating low back disability are all mere oversights, and such a conclusion is not reasonable. We find the preponderance of the evidence to be against the grant of service connection for residuals of a back injury. II. Service Connection For Diabetes Mellitus We find that the claim for service connection for diabetes mellitus is not "well grounded." 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that the appellant has not presented a claim that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The appellant contends that his diabetes mellitus is the result of his military service. He offers no explanation for this belief, and the Board is unable to discern any basis for it. He has not alleged, as with the claim for residuals of a back injury, that it was treated in service, or that records are lost. The service medical records that we have are silent as to diabetes. There are 40 years intervening between the veteran's separation from service and the first medical evidence of his having diabetes. Diabetes mellitus is a chronic disease for the purpose of the statutory presumption of incurrence of chronic diseases in service. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. § 3.309(a) (1992). The appellant makes no contention that he was 10 percent disabled by diabetes within a year of separation from service, 38 C.F.R. § 3.307(a)(3) (1992), or that it was noted in service and he has had it continuously since its onset in service, 38 C.F.R. § 3.303(b) (1992), or, for that matter, that it even began in service. 38 U.S.C.A. § 1110 (West 1991). He says no more than that it is the result of service. He has not reported any treatment or furnished any other evidence whatsoever to support his claim. We note that the missing VA and private medical evidence purportedly related to treatment for the back disability, not for diabetes. The evidence documenting a 1986 diagnosis of diabetes is incapable of substantiating the claim of entitlement to service incurrence. Murphy. The Court has held that a claim is not well grounded where a claimant has not submitted any evidence of symptomatology of a chronic disease within the presumptive period, continuity of symptomatology after service, or other evidence supporting direct service connection. Harvey v. Principi, 3 Vet.App. 343 (1992); Hayes v. Derwinski, No. 90-743 (U.S. Vet. App. Apr. 28, 1992) (memorandum decision). As with the instant case, in Hayes "[t]he veteran never asserted to the RO or the BVA that his symptomatology was continuous after his discharge from service. Consequently, his claim, which was supported by no evidence that his current conditions were related to service, was not well-grounded . . . ." Hayes, slip op. at 4. The evidence in the instant claim is insufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991), and, accordingly, that claim is denied. ORDER Service connection for residuals of a back injury is denied. A well grounded claim for service connection for diabetes mellitus not having been submitted, the claim is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III KENNETH R. ANDREWS, JR.