Citation Nr: 9925183 Decision Date: 09/02/99 Archive Date: 09/13/99 DOCKET NO. 94-25 338 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to an increased rating for lumbosacral strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from February 1974 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1994 rating decision by the RO that denied claims of entitlement to service connection for a cervical spine disorder and an increased rating for lumbosacral strain. The veteran was notified of these denials by a letter dated in March 1994. In his notice of disagreement, received in March 1994, the veteran requested a hearing before a hearing officer at the RO. In his substantive appeal, received in June 1994, the veteran withdrew his request for a hearing. Previously, this case was before the Board in July 1998 when it was remanded for additional development. FINDINGS OF FACT 1. No competent medical evidence has been presented to link a current cervical spine disorder to the veteran's period of military service. 2. The veteran complained in December 1993 that his low back had worsened. 3. The benefit sought cannot be established without medical evidence regarding the current severity of the veteran's service-connected low back disability. 4. Without good cause shown, the veteran failed to report for VA examinations of the spine which were scheduled for April 12, 1996, and January 24, 1997. CONCLUSIONS OF LAW 1. The veteran's claim of service connection for a cervical spine disorder is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). 2. An increased rating for lumbosacral strain is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.655 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cervical Spine Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1998); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1998). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one that is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. The veteran claims that his cervical spine disorder had its onset in service. An examination report prepared in September 1974 and separation examination report dated in October 1975, are negative for a diagnosis pertaining to any cervical spine disorder. The remaining service records show that, in April 1975, the veteran was seen for complaints of neck stiffness due to doing a flip. The impression was muscle strain. In September 1975, he was seen for complaints of soreness of the back muscles and neck due to heavy lifting. The impression was muscle strain. Post-service VA outpatient treatment records since April 1978 document treatment for complaints of neck pain. In November 1989, chronic muscle strains - neck and low back - were diagnosed. In October 1993, cervical strain was diagnosed. In January 1994, neck pain was diagnosed. The veteran has not presented any competent medical evidence to show a link between any current cervical spine disorder and his period of military service. The Board has considered the veteran's written statements regarding the onset of his cervical spine disorder. While he is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, there is no indication that he is competent to comment upon etiology or time of onset. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494-95. Absent the presentation of competent medical evidence showing a link between current diagnosis and service, the veteran's claim may not be considered well grounded and must be denied. It has also been contended on the appellant's behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit, supra, in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his claim. In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears merely to reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant's application is incomplete, or that he is aware of evidence which would render his claim well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). Lumbosacral Strain Disability evaluations for service-connected conditions are determined by the application of a schedule of ratings that is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1998). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (1998). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, it is the more recent evidence that is of primary concern, since such evidence provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran's lumbosacral strain has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5295. Code 5295 provides criteria by which impairment of the low back resulting from lumbosacral strain may be evaluated. A 10 percent rating is assignable when there is characteristic pain on motion. 38 C.F.R. § 4.71a, Code 5295. A 20 percent rating is assignable when there is muscle spasm on extreme forward bending, loss of lateral spine motion in a standing position. Id. When there is severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, a 40 percent rating is warranted. Id. The veteran's service-connected low back disability has been rated as 10 percent disabling ever since a September 1978 rating decision. In order to fulfill the statutory duty to assist, the Board remanded this case for further evidentiary development in July 1998. Among the actions sought by the Board was a VA examination for purposes of assessing the severity of the veteran's service-connected disability and complying with the directives set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). The last VA compensation and pension (C&P) examination of record was conducted in July 1978, which was inadequate for rating purposes. DeLuca, supra. Although the veteran had submitted VA treatment records showing treatment for the back, dated from October 1987 to February 1996, these records are also inadequate for rating purposes. While these records show that the veteran was seen for complaints of back pain, and diagnoses included chronic lumbosacral strain and degenerative joint disease, it was not clear whether he had other symptomatology necessary to receive an increased rating under Code 5295 or other pertinent diagnostic codes. Consequently, a re-examination was required. 38 C.F.R. § 3.327 (1998). A March 1996 VA Form 21-92-01, VA RO C&P exam request, reflects that a VA neurological and orthopedic examination was ordered in conjunction with the veteran's claim for an increased rating. A C&P examination report reflects that the veteran failed to report for the scheduled VA examination of the spine on April 12, 1996. A computer print out from the VA Medical Center in Philadelphia, Pennsylvania shows that the veteran failed to report for another VA examination of the spine, scheduled for January 24, 1997. A supplemental statement of the case (SSOC) was issued in November 1997 noting the veteran's failure to report for VA examinations scheduled for April 12, 1996 and January 24, 1997. A statement from the veteran's representative, dated in June 1998, acknowledged the veteran's failure to report to both C&P examinations. In the representative's informal hearing presentation, dated in July 1998, the representative noted that there was no indication why the veteran failed to report for VA examination and requested that another attempt be made to contact the veteran to determine his willingness to report for VA examination. Pursuant to the Board's July 1998 remand, the RO sent the veteran a letter, dated in August 1998, specifically set forth the provisions of 38 C.F.R. § 3.655, explaining that failure to report for examination could result in a denial of a claim for increase. The RO requested that the veteran identify any evidence of recent treatment for his lumbosacral strain and another VA examination would be rescheduled if he provided good cause for missing his last VA examination. The veteran did not respond. The RO sent another request for information in February 1999, and again informed the veteran of the provisions of 38 C.F.R. § 3.655 and noted that another VA examination would be rescheduled if he provided good cause for missing his last VA examination. The veteran did not respond. A SSOC was issued in April 1999 that specifically set forth the provisions of 38 C.F.R. § 3.655, explaining that failure to report for VA examination could result in a denial of a claim for increase. A statement from the veteran's representative, dated in June 1999, indicates that it was the veteran's contention that the evidence of record was sufficient to warrant a higher rating, and that the issue was being submitted to the Board for final review. Another statement from the veteran's representative, dated in August 1999, indicates that the veteran should be scheduled for another VA examination because he was not informed of the provisions of 38 C.F.R. § 3.655(b) prior to his last scheduled VA examination, but was informed after the fact. Because the question of entitlement to an increased rating turns on whether the veteran meets the schedular criteria for an increased rating, and because an examination was required in order to determine whether he had in fact met those criteria, the benefit sought cannot be granted at this time. (a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. ... (b) Original or reopened claim, or claim for increase. ... When the examination was scheduled in conjunction with ... a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (1998) (emphasis added). In this regard, the Board notes that, because the veteran's failure to report for the examination scheduled on April 12, 1996 or January 24, 1997, is without explanation, it may be said that his absence from the scheduled examination was without good cause. The RO noted the veteran's failure to report for examination in a November 1997 SSOC, but no explanation was thereafter received from the veteran or his representative. In an August 1999 informal hearing presentation, the veteran's representative requested that another examination be scheduled because there had been insufficient notice to the veteran of the possible result of his failure to report for examination under 38 C.F.R. § 3.655. However, the Board notes that, after the veteran failed in his obligation to report for the scheduled VA examination, the RO provided him with two letters, dated in August 1998 and February 1999, and a SSOC in April 1999, which contained a summary of the provisions of 38 C.F.R. § 3.655. Although the veteran was thereafter afforded an opportunity to present argument and/or evidence on the specific matter of why he failed to report for either examination, he has not responded. Additionally, it should be noted that no evidence has been presented to rebut the presumption that the veteran was properly informed of the date and time of the examinations. See Mason v. Brown, 8 Vet. App. 44, 53-55 (1995). Consequently, his claim for an increased rating must be denied. 38 C.F.R. § 3.655. ORDER Service connection for a cervical spine disorder is denied. An increased rating for lumbosacral strain is denied. MARK F. HALSEY Member, Board of Veterans' Appeals