Citation Nr: 9923581 Decision Date: 08/19/99 Archive Date: 08/26/99 DOCKET NO. 98-14 046A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired low back disability. 2. Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.P. Harris, Counsel INTRODUCTION Appellant apparently had active service from January 1964 through February 1965 and reenlisted from March 1965 to January 1971. See DD Form 214 and other records. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision by the No. Little Rock, Arkansas, Regional Office (RO), which denied service connection for an acquired low back disability (classified as lumbar strain with degenerative changes), a headache disorder, and residuals of excision of a posterior neck carbuncle, on the grounds that the claims were not well grounded. A September 1998 RO hearing was held. In a subsequent September 1998 decision, the hearing officer granted service connection for residuals of excision of a posterior neck carbuncle, thereby rendering that issue moot. Although an increased rating issue may have been raised in recent written statements by appellant's representative, inasmuch as it has not been developed for appellate review, it is referred to the RO for appropriate action. Kellar v. Brown, 6 Vet. App. 157 (1994). Accordingly, the Board construes the issues on appeal as those delineated on the title page of this decision, and will proceed accordingly. FINDINGS OF FACT 1. It has not been shown, by competent evidence, that appellant's acquired low back disability (classified as lumbar strain with degenerative changes) had its onset during appellant's active service, proximate thereto, or within a one-year post-service presumptive period. 2. It has not been shown, by competent evidence, that appellant has a chronic headache disorder related to service. CONCLUSION OF LAW Appellant has not submitted evidence of well-grounded claims for entitlement to service connection for an acquired low back disability and a headache disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION A threshold question to be answered is whether appellant has presented evidence of well-grounded claims with respect to the issues of service connection for an acquired low back disability and a headache disorder. A well-grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609 (1992), the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) held that the appellant in that case had not presented a well-grounded claim as a matter of law. The Court pointed out that "unlike civil actions, the Department of Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an allegation; the claimant must submit supporting evidence." If a well-grounded claim has not been presented, the appeal with respect to that issue must fail. King v. Brown, 5 Vet. App. 19, 21 (1993) held that "evidentiary assertions [by the veteran] must also be accepted as true for the purpose of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." Appellant contends and has testified at a September 1998 RO hearing, in essence, that he initially injured his back while loading a vehicle with supplies; that in Vietnam, he reinjured the back when a motorcycle hit him while he was walking; that his back pain causes headaches; and that during service, he was prescribed eyeglasses for the same type of headaches that he presently has. It is argued that the service medical records between 1966 to 1968 are incomplete. Currently associated with the claims folder are certain relevant service medical records dated from 1964 to the early 1970's, which include treatment for back pain and headaches. Although it is unclear whether the service medical records are complete, the RO has sought and obtained service medical records to the extent they are available. See, e.g., a November 1997 RO's Request for Information form and a service department records envelope received from the National Personnel Records Center (NPRC), containing the service medical records currently associated with the claims folder; and the RO's November 1997 and December 1998 letters to appellant, requesting certain relevant information. Additionally, a December 1970 service separation examination report is of record and does not contain any findings or diagnoses pertaining to a chronic back or headache disorder. That December 1970 service separation examination report is particularly probative, since it assesses his physical health status shortly prior to service separation; and in an attendant medical questionnaire, appellant did not have any pertinent complaints nor did a physician's elaboration identify any pertinent abnormality. A further search for additional service medical records that may or may not exist seems unnecessary under the circumstances. Moreover, there is no competent evidence of record relating a chronic low back or headache disorder, if currently existent, to service, as will be explained in detail below. Therefore, to require the RO to attempt to obtain any additional service medical records that might conceivably exist would serve no useful purpose. It should be added that in addition to the aforementioned service medical records, the relevant evidentiary record includes numerous private medical records dated more than a decade after service and January 1998 VA examinations reports. Service connection for VA disability compensation purposes may be awarded for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Where a veteran served continuously for ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In pertinent part, for the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnoses including the word "Chronic." Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may legitimately be questioned. When 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). 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). Appellant's service medical records reveal that in August 1964, he complained of headaches, alleging that they occurred daily around noontime associated with his engaging in "close work" and having itchy and "burning" eyes. After an eye examination was conducted, eyeglasses were ordered for "asthenopia---headache." On service reenlistment examination in March 1965, a chronic back or headache disorder was neither claimed nor clinically reported. In April 1965, he complained of low back pain. X-rays of the lumbar spine were negative. Diathermy was prescribed. In August 1965, he complained of left frontal headaches. It was reported that he had previously had headaches, for which he had been prescribed eyeglasses that proved beneficial. Medication was prescribed in August and October 1965 for headaches. However, on December 1970 service separation examination, there were no complaints, findings, or diagnoses pertaining to a chronic back or headache disorder. The post-service clinical evidence includes private medical records dated from 1981 to 1997, decades after service. Those private medical records reveal that although in the early 1980's, appellant received treatment for an unrelated disability, a chronic low back or headache disorder was neither claimed nor clinically reported. It is of substantial import that the earliest post-service clinical evidence of a low back disability was not until May 1984, more than a decade after service, when appellant reported an approximate one-year history of low back pain. It was also reported that he lifted weights for exercise and was a mail carrier. Radiographically, degenerative changes of the lumbar spine were noted. In October 1989, it was reported that he had injured his back while lifting approximately two years earlier. In April 1991, appellant reported having incurred a work-related back injury from lifting several years earlier. Lumbar degenerative discogenic disease was diagnostically shown. These private medical records do not include any complaints, findings, or diagnoses pertaining to a chronic headache disorder. On January 1998 VA orthopedic and neurologic examinations, there were no complaints, findings, or diagnoses pertaining to a chronic headache disorder. Appellant alleged that he had experienced back problems for approximately 30 years; that he had incurred low back pain in 1964 while loading a vehicle with supplies; and that he had reinjured his back in Vietnam when he was hit and knocked down by a moped. Radiographically, lumbar spondylosis and spina bifida occulta were noted. Lumbar muscle strain and early degenerative joint disease of the lumbar spine were diagnosed. Parenthetically, in Firek v. Derwinski, 3 Vet. App. 145, 146 (1992), the Court referred to spina bifida occulta as a "congenital condition, which is noncompensable under applicable law." See also 38 C.F.R. § 3.303(c) (1998). It should be added that with respect to these not well- grounded service connection claims, appellant and his representative have been informed by the RO that the claims were denied, in part, due to the lack of clinical evidence indicating that any low back or headache disorder was shown, by competent evidence, to be related to service. See, in particular, a July 1998 Statement of the Case and September 1998 Supplemental Statement of the Case. Additionally, said Statements included provisions of law with respect to veterans' responsibility for filing a well-grounded claim. It is therefore apparent that they were knowledgeable regarding the necessity of competent evidence to support these service connection claims. Thus, it is concluded that appellant and his representative had notice of the type of information needed to support these claims and complete the application. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also Epps v. Brown, 9 Vet. App. 341, 344 (1996), wherein the Court explained that "[t]he Robinette opinion held that 38 U.S.C. § 5103(a) imposes an obligation upon the Secretary to notify an individual of what is necessary to complete the application in the limited circumstances where there is an incomplete application which references other known and existing evidence." It does not appear that appellant or his representative has informed the VA of the existence of any specific competent evidence that would render the service connection claims well grounded. See October 1998 and January 1999 written statements, wherein appellant divulged that after service, he had resided in Fort Worth, Texas for eight years and received private chiropractic treatment for his back; that medical records of such treatment were unavailable; and that treatment records from "Dr. Gary Basheds" had been destroyed. See also the September 1998 RO hearing transcript, at T.4, wherein he stated that he could not recall the names of certain physicians who had treated him in Fort Worth, Texas, prior to moving to New Boston. Appellant contends, and has testified at said September 1998 RO hearing, that the claimed acquired low back and headache disorders are presently manifested and related to service. However, appellant is not competent to offer medical opinion or diagnosis. In Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1991), the Court stated "[a] layperson can certainly provide an eye-witness account of a veteran's visible symptoms." However, as the Court further explained in that case, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge such as a diagnosis...." Here, although appellant is competent to state that he sustained an in-service low back injury or experienced certain in-service low back and headache symptomatology, he is not competent to offer medical opinion as to whether any chronic acquired low back or headache disorder is related to service, since that requires medical opinion beyond a lay person's competence. In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), the Court stated, in pertinent part, that "in order for a claim to be well grounded, there must be competent evidence of 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)...." See also Wade v. West, 11 Vet. App. 302, 306 (1998), wherein the Court held that the claims in that case were not well grounded, since although service medical records were missing and there was evidence of present disability, the record did not contain medical evidence of a causal relationship between the current disability and service. Appellant has not presented any competent evidence that indicates that a chronic headache disorder is presently manifested and related to service. The Court, in Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), held that, referring to the veteran in that case: He apparently is of the belief that he is entitled to some sort of benefit simply because he had a disease or injury while on active service. That, of course, is mistaken. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110 (formerly § 310). In the absence of proof of a present disability there can be no valid claim. Our perusal of the record in this case shows no claim of or proof of present disability. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Thus, given the lack of competent clinical evidence showing that a chronic acquired low back disability is related to appellant's service or that a chronic headache disorder is presently manifested and related to service, the claims for service connection for acquired low back and headache disorders are not well grounded. The claims are therefore denied. 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet. App. 91 (1993); Grivois v. Brown, 6 Vet. App. 136 (1994). See also, Edenfield v. Brown, 8 Vet. App. 384, 390 (1995). ORDER Appellant's claims of entitlement to service connection for acquired low back and headache disorders are not well grounded, and therefore, are denied. MICHAEL D. LYON Member, Board of Veterans' Appeals