LeShore v. Brown

8 Vet. App. 406, 1995 U.S. Vet. App. LEXIS 856, 1995 WL 691889
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 22, 1995
DocketNo. 94-766
StatusPublished
Cited by32 cases

This text of 8 Vet. App. 406 (LeShore v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LeShore v. Brown, 8 Vet. App. 406, 1995 U.S. Vet. App. LEXIS 856, 1995 WL 691889 (Cal. 1995).

Opinion

KRAMER, Judge:

The appellant, Vietnam veteran James P. LeShore, appeals an August 4,1994, decision of the Board of Veterans’ Appeals (BVA or Board) which denied entitlement to service connection for a low back disorder. Record (R.) at 5-13. The Court has jurisdiction under 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the Board’s decision.

I. Background

The appellant served on active duty in the United States Marine Corps from August 1965 to April 1969. R. at 18,151. According [408]*408to a July 1968 service medical record (SMR), the veteran was examined following a complaint of “pain in his chest [with] pain in back of neck traveling down his spine.” R. at 38. The examiner assessed “[mjuscular pain.” Ibid. The SMRs contain no other pertinent entries. See R. at 21-49. The report of the appellant’s March 1969 separation physical examination described his spine as “normal.” R. at 43.

In February 1989, the appellant filed with a VA regional office (RO) a claim for service connection for a back condition. R. at 51-57. In July 1989, he was examined at a VA medical center (MC), at which time the examiner noted a “s[ubjective]” complaint of “L[ower]B[ack]S[ymptoms] since 1968” and “20 y[ea]r h[istory of] LBS.” R. at 113. Later that month the veteran was provided a VA orthopedic examination, at which time the examining physician noted that the veteran’s claims folder was not available but that “back and leg pain” had been previously diagnosed. R. at 112. Under the heading “S[ubjective],” the examiner wrote: “20 y[ea]r history, intermittent pain, various medications], various regular jobs.” Ibid. Similarly, on a form requesting a radiologic examination of the veteran’s back, the examiner stated the reason for the request as “20 y[ea]rs intermittent pain l[umbo]s[acral area] and l[ef]t sciatic [nerve].” R. at 111. The examiner’s assessment was chronic low back pain. R. at 112.

In April 1990, the appellant testified under oath at a personal hearing at the RO. He asserted, inter alia, that his current back disorder had its onset in June 1968. R. at 123. He offered similar testimony in June 1992 when he appeared at a hearing before the Board. R. at 250-51.

In April 1993, the appellant was provided a spinal examination at a VAMC. The diagnosis was “[l]umbar radiculopathy secondary to herniated nucleus pulposus.” R. at 310. The examining physician stated: “It is my opinion that Mr. LeShore’s current, very mild low back symptoms are in no way related to the back symptoms which he experienced in the service. The reason for my opinion is that he does not even recall what type of symptoms he experienced in the service.” R. at 313.

After the RO denied the claim, the appellant appealed to the Board, which, in the August 1994 decision here on appeal, dismissed the claim on the basis that a well-grounded claim had not been submitted. R. at 12. Specifically, the Board noted that in July 1989 the appellant had “reported a 20-year history of low back pain,” R. at 8, but described the veteran’s self-reported medical history as “unacceptable” evidence. R. at 12. The Board specifically found, however, that the veteran’s sworn testimony before the RO and the BVA was credible, but concluded that he had not submitted the competent medical evidence sufficient to render the claim well grounded that is required by Grottveit v. Brown, 5 Vet.App. 91 (1993), and that, accordingly, the Secretary’s duty to assist under 38 U.S.C. § 5107(a) was not triggered. R. at 11-12. A timely appeal to this Court followed.

II. Analysis

Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C. § 5107(a). A claim is well grounded if it is “plausible.” See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Further, where, as here, the determinative issue involves medical etiology, competent medical evidence that the claim is “plausible” or “possible” is required in order for the claim to be well grounded. See Caluza v. Brown, 7 Vet.App. 498, 504 (1995); Lathan v. Brown, 7 Vet.App. 359, 365 (1995); Grottveit, 5 Vet.App. at 93. This burden of submitting such competent medical evidence may not be met merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The determination whether a claim is well grounded is subject to de novo review by this Court. See King v. Brown, 5 Vet.App. 19 (1993).

The Court has held that evidentiary assertions “must ... be accepted as true for [409]*409purposes of determining whether the claim is well grounded ... [except] when the eviden-tiary assertion [other than in a government record] is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.” Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995) (quoting King, 5 Vet.App. at 21).

Here, the only evidence offered to support the appellant’s assertion that his present back disorder had its onset in service — and thus the only evidence that could make the claim well grounded — consists of (1) his own sworn testimony and (2) the July 1989 VAMC records noting a 20-year history of back problems beginning in 1968 or 1969. With respect to the former, the appellant is a lay person and is therefore not competent to offer an opinion requiring medical knowledge. See Espíritu, supra.

Thus, the question which the Court must resolve is whether the July 1989 VAMC records constitute the “competent medical evidence” required by Grottveit, supra. Because one of those records references “1968” as the date of onset of the appellant’s back condition, for purposes of the present analysis the Court will assume, without deciding, that the records’ other references to back pain of 20 years’ duration similarly refer to an in-service onset.

Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute “competent medical evidence” satisfying the Grottveit requirement. Such evidence cannot enjoy the presumption of truthfulness accorded by Robinette (as to determination of well groundedness) and Justus v. Principi, 3 Vet.App. 510, 513 (1992) (as to determination of whether evidence is “new and material” for purposes of reopening a claim), because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into “competent medical evidence” merely because the transcriber happens to be a medical professional. See Layno v. Brown, 6 Vet.App. 465, 469 (1994) (“in order for any testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration”).

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Cite This Page — Counsel Stack

Bluebook (online)
8 Vet. App. 406, 1995 U.S. Vet. App. LEXIS 856, 1995 WL 691889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leshore-v-brown-cavc-1995.