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96-918 Rose V West_disk Disease

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Author: USCVA

Typist: USCVA

UNITED STATES COURT OF VETERANS APPEALS

No. 96-918

Jack O. Rose, Appellant,

v.

Togo D. West, Jr.,

Acting Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided April 20, 1998

)

Ronald L. Smith was on the brief for the appellant.

Robert E. Coy, Acting General Counsel; Ron Garvin, Assistant General

Counsel; Joan E. Moriarty, Deputy Assistant General Counsel; and

Jacqueline M. Sims, Senior Appellate Attorney, were on the brief for the

appellee.

Before KRAMER, HOLDAWAY, and IVERS, Judges.

KRAMER, Judge: The appellant, Jack O. Rose, appeals a May 3, 1996,

decision of the Board of Veterans' Appeals (BVA or Board) denying service

connection for a back disorder (Record (R.) at 6-25), subsequent to the

Court's remand decision that new and material evidence had been submitted

to reopen the appellant's claim (R. at 284). This appeal is timely, and

the Court has jurisdiction pursuant to 38 U.S.C. 7252(a). For the

reasons that follow, the Court will reverse the decision of the BVA and

remand the matter with an order that the Board grant service connection

for a back disability and for the prompt assignment of an appropriate

disability rating for the appellant's back condition.

I. RELEVANT BACKGROUND

The appellant served in the U.S. Coast Guard from November 1951 to

May 1954. R. at 28. He has averred that he injured his back while

lifting a hatch on-board ship in March 1952 (R. at 125)

and has submitted a statement from a fellow serviceman who was present

when this event occurred (R. at 110). The appellant's service medical

records reveal that he was treated for back pain in service first in March

1952 and repeatedly thereafter until at least August 1953. R. at 43, 46-

48, 52, 54, 58. In 1985, the appellant was diagnosed by Dr. Ira M. Hardy,

II, as having profound lumbar disc disease marked by large, bulging discs

in the L3-L4 and L4-L5 joints, a degenerative disc in the L5-S1 joint, and

nerve root impingement. R. at 86. This diagnosis has been

supported by similar diagnoses from Drs. John R. Kindell (R. at

90), Matthew L. Zettl (R. at 94), and Ralph M. Coonrad (R. at 251). Of

these three doctors, Dr. Zettl characterized the appellant's condition as "

lumbar disc disease, as well as degenerative arthritis of the lumbar spine

" (R. at 94), and Dr. Kindell stated, "I feel there is no doubt that this

man's present disability is directly related to his original injury of 28

March 1952" (R. at 200). Finally, without providing a specific diagnosis,

Dr. Richard W. Borden stated: "After thorough review of [the appellant]'s

medical history, including his service records, it is my professional

opinion that the continued back problem is, with[]out a doubt related to

his service injury in 1952." R. at 160.

Based on the diagnoses discussed above, the BVA characterized the

appellant's condition as "[d]egenerative arthritis of the lumbosacral

spine with disc disease and nerve root impairment." R. at 9. After the

Board expressly found that he did not have a back condition prior to

service, the Board concluded that "[d]egenerative arthritis of the

lumbosacral spine with disc disease was not incurred in or aggravated by

service, nor may arthritis be presumed to have been so incurred." Id. In

denying his claim, the BVA stated, in essence, that the appellant's

evidence did not meet the requirements of 38 C.F.R. 3.303(b) (1997

). R. at 19, 22-24.

II. ANALYSIS

Establishing service connection generally requires medical evidence

of a current disability, see Rabideau v. Derwinski, 2 Vet.App. 141 (1992);

medical or, in certain circumstances, lay evidence of in-service

incurrence or aggravation of a disease or injury; and medical evidence of

a nexus between the claimed in-service disease or injury and the present

disease or injury. See 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 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of

well- grounded claim set forth in Caluza, supra), petition for cert. filed,

No. 97-7373 (Jan. 5, 1998);

Heuer v. Brown, 7 Vet.App. 379 (1995); Grottveit v. Brown, 5 Vet.App. 91 (

1993). Alternatively, under 38 C.F.R. 3.303(b), service connection may

be awarded for a "chronic" condition when: (1) a chronic disease manifests

itself and is identified as such in service (or within the presumption

period under 38 C.F.R. 3.307 (1997)) and the veteran presently has the

same condition; or (2) a disease manifests itself during service (or

during the presumptive period) but is not identified until later, there is

a showing of continuity of symptomatology after discharge, and medical

evidence relates the symptomatology to the veteran's present condition.

See Savage v. Gober, 10 Vet.App. 488, 495-98 (1997).

A finding of service connection is a finding of fact. See Russo v.

Brown, 9 Vet.App. 46, 50 (1996); Horowitz v. Brown, 5 Vet.App. 217, 221 (

1993). The Court reviews BVA fact finding under a "clearly erroneous"

standard of review. Under this standard "if there is a 'plausible' basis

in the record for the factual determinations of the BVA . . . [the Court]

cannot overturn them." Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).

However, the Board may not substitute its own unsubstantiated medical

conclusion to refute medical evidence favorable to a claim. See Alemany v.

Brown, 9 Vet.App. 518, 519 (1996); Thurber v. Brown, 5 Vet.App. 119, 120-

22 (1993).

The Secretary's brief concedes that "there is no medical opinion of

record that supports the Board's conclusion that the [a]ppellant's back

disorder is not related to service," and that the Board relied on its own

unsubstantiated medical conclusion to refute the appellant's favorable

evidence. Secretary's Brief at 13-15. However, the Secretary argues that

the Board's decision should not be reversed, but rather that the decision

should be vacated and the matter should be remanded for further

adjudication. The essence of the Secretary's position appears to be, like

that of the Board, that the appellant cannot be granted service connection

because he cannot satisfy the requirements of 3.303(b).

The Secretary's position is without merit. Section 3.303(b) provides

an alternative method of demonstrating entitlement to service connection.

Savage, 10 Vet.App. at 495-6 (section 3.303(b) is provision that veteran "

may utilize" because it provides "a substitute way" of proving service

connection) (emphasis added). Nothing in 3.303(b) requires that its

criteria must be met to establish service connection. To the contrary, it

is clear that service connection may be established by medical evidence of

an in-service injury or aggravation, medical evidence of a current

condition,

and medical evidence of a nexus between the two. See Caluza, supra.

This is not to say that medical evidence of nexus could not be rebutted,

in an appropriate case, by medical evidence that demonstrates the

significance of a lack of continuity of symptomatology. However, no such

evidence exists and it is not the function of judicial review simply to

accord the government a remand to obtain such evidence

Whether a disability is incurred in or aggravated during service or

incurred during a presumption period is a finding of fact. See Russo; and

Horowitz, supra. This Court reviews BVA fact finding under a "clearly

erroneous" standard of review. Under this standard "if there is a

'plausible' basis in the record for the factual determinations of the BVA

. . . [the Court] cannot overturn them." Gilbert, 1 Vet.App. at 53. Here,

each of the three requirements under Caluza is unequivocally supported by

the medical evidence submitted by the appellant. There is no medical

evidence in the record that is contrary to the appellant. As the

Secretary concedes, the Board improperly refuted this evidence with its

own unsubstantiated medical opinion. See Alemany, supra. Because the BVA

has articulated no valid basis for denying service connection, its

decision is not plausible and is, accordingly, clearly erroneous. See

Russo and Gilbert, supra.

In view of the uncontested nature of the evidence of service

connection, the Board's decision must be reversed. See Traut v. Brown, 6

Vet.App. 495, 500 (1994) (where medical evidence of record addresses all

elements of service connection, is uncontradicted by competent evidence,

and definitively supports appellant's position, reversal rather than

remand is appropriate); Harder v. Brown, 5 Vet.App. 183, 189-90 (1993);

Willis v. Derwinski, 1 Vet.App. 66, 70 (1991). Cf. Talley v. Brown, 6 Vet.

App. 72, 74-75 (1993) (vacating and remanding claim where appellant's

favorable medical evidence characterized his claim as merely "plausible

").

III. CONCLUSION

The May 3, 1996, BVA decision is REVERSED and the matter is REMANDED

for the BVA to award service connection for a back disorder and for the

prompt assignment of an appropriate disability rating for the back

condition.

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