BVA9504554 DOCKET NO. 93-00 775 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for tropical sprue. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to August 1968. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In order to determine the nature and etiology of the veteran's condition, the Board had sought the medical opinion of a Board Medical Adviser. The response from the Board Medical Adviser, dated August 1993, has been added to the record. The opinion was sent to the veteran's representative to meet the requirements of Thurber v. Brown, 5 Vet.App. 119 (1993). Additional argument was submitted by the veteran's representative in September 1993. The United States Court of Veterans Appeals (Court), in Austin v. Brown, 6 Vet.App. 547 (1994), vacated and remanded a January 1993 decision of the Board that relied upon a Board Medical Adviser's opinion. In doing so, the Court raised several questions about procedures used in requesting and using such opinions. The Chairman of the Board, in Chairman's Memorandum No. 001-94-17, dated August 16, 1994, and entitled Appeals Involving BVA Medical Adviser Opinions, instructed the Board Members to make determinations as necessary, on a case-by-case basis, regarding whether the veteran will be prejudiced by reliance upon a Board Medical Adviser's opinion in reaching a decision in the appeal. On the basis of the evidence of record, the Board finds, in light of Austin, that, due to the procedural defects in the procurement of the opinion, reliance may not be placed on the opinion of the Board Medical Adviser in resolving the claim. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying him entitlement to service connection for tropical spruce. He contends that while on active service in Vietnam he contracted tropical sprue, a disease endemic to Southeast Asia. It is also contended that a private physician treated him for tropical sprue beginning in 1975. He also asserts that Crohn's disease, clinically manifested in 1988, was a maturation of his gastrointestinal symptoms in service or, in the alternative, the diagnosis of Crohn's disease is not well supported and that he currently has tropical sprue. The representative asserts that 38 U.S.C.A. § 1154 (West 1991) provides a basis for favorable action in this case. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on a review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual, that his claim for service connection for tropical sprue is well grounded; therefore, the claim is dismissed. FINDING OF FACT No competent medical evidence is of record that would establish that the veteran's current disability or disabilities of the gastrointestinal system are causally related to service or to any incident or event therein, and tropical sprue has not been diagnosed. CONCLUSION OF LAW The claim of entitlement to service connection for tropical sprue is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The fundamental question posed on this appeal is whether the veteran has presented evidence of a well-grounded claim. A well- grounded claim is one which is plausible; that is meritorious on its own or capable of substantiation. If the veteran has not submitted evidence of a well-grounded claim, there is no duty to assist him in the development of facts pertinent to the claim. Further, if he has not submitted a well-grounded claim, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). As noted above, the Board had sought the opinion of a Medical Board Adviser. The decision to seek a Medical Board Adviser opinion was made in order to assist the veteran in the development of facts pertinent to his claim, based upon the case law in effect at that time. However, the Court has subsequently issued several important decisions concerning what constitutes a well-grounded claim. For reasons which will become clear below, the Board has determined that there is no duty to assist the veteran further in the development of facts pertinent to his claim. According, a medical opinion is not warranted. The Court has held, in substance, that for purposes of determining whether a claim is well grounded, all the evidence of record is examined, not just that which has been specifically submitted to support a particular claim. See, e.g., Proscelle v. Derwinski, 2 Vet.App. 629 (1992); Godwin v. Derwinski, 1 Vet.App. 419 (1991). I. Background Service medical records reveal that in October 1966, the veteran reported that he had experienced no bowel movements for one week. An enema was administered with good results. In November 1966, he was seen for a complaint of constipation for two weeks. He was provided medication. Both the entries dated October and November 1966 reflect that the appellant was then stationed at Paris Island, South Carolina. In November 1967, the appellant was seen with complaints of general malaise after nausea and vomiting "yesterday." Testing was done with normal results and no treatment was provided. The veteran was discharged in August 1968 and the physical examination conducted in conjunction with separation contains no complaints or statements of medical history indicative of any gastrointestinal disease. On clinical evaluation all findings relevant to his digestive system were evaluated as normal. His height was 72 inches; his weight was 165 pounds and his build was described as medium. (At examination for entry into service in June 1966 the respective findings were 71 inches and 161 pounds.) Post service medical evidence of record reveals treatment in November 1988 after the veteran sustained a weight loss of 50 pounds. It was indicated at that time that the veteran suffered from abnormal nodular lesions in the duodenal bulb consistent with possible Crohn's gastroduodenitis. Tissue examination that month was found consistent with widespread Crohn's disease. In December 1990, the veteran was hospitalized at a VA medical center with a diagnosis of probable Crohn's disease and lower bowel obstruction. The examiner noted that the veteran had a four-year history of Crohn's disease with symptoms of crampy, nonbloody diarrhea. The veteran was treated and released that month. In January 1991, the veteran was hospitalized and underwent ileocecal resection, cholecystectomy. The final diagnosis was Crohn's disease status post ileocolotomy with primary resection and symptomatic cholelithiasis. In a December 1991, Thomas Q. Malvar, M.D., stated that the veteran had been under his care since 1975 and that the veteran had no history of Crohn's disease in his family. The record reflects that in May 1991, the VA has provided copies of the veteran's entire medical records to Dr. Malvar at the request of the veteran. In his December 1991 substantive appeal, the veteran contends that the majority of people who have Crohn's disease have found that this condition runs in their family, which, he contends, is not true his case. He also contends that if he did have Crohn's disease it would not be a difficult condition to diagnose and would not have taken five years to diagnose. He argues that he has been misdiagnosed and is actually suffering from tropical sprue. At a hearing held before a hearing officer at the RO in March 1992, the veteran testified that while stationed in Vietnam he began to have diarrhea. He indicated that he has suffered from diarrhea since service and that this condition is a result of tropical sprue. When asked by the hearing officer why the veteran believed he had tropical sprue, the veteran replied that there was no history of Crohn's disease in his family and that he was under the impression that Crohn's disease was hereditary. He also indicated that all of his symptoms pointed to tropical sprue. Further, he also indicated that he began to have weight loss in 1975, losing the majority of his weight in 1985 when this condition began to seriously affect him. In arguments submitted by the veteran's representatives it is contended that since medical staffs in the United States are not normally trained in the diseases of Southeast Asia, it would be normal that they would associate the veteran's condition with Crohn's disease. It was contended that because of the veteran's ethnic background, with no family history of Crohn's disease, it was in the realm of medical possibility that due to his service in Southeast Asia his condition could be related to service. It was argued that this was especially evident by the veteran's testimony, the fact that he did not have this problem until his active service in Vietnam, and the fact that he has had this problem continually since his return from Southeast Asia. The veterans' representatives reiterate the veteran's contention that he has been misdiagnosed with Crohn's disease. They also note that tropical sprue is endemic to Southeast Asia, where the veteran served, and a significant number of servicemen who returned from that county returned with this condition. They further argue, based on the Physician's Guide for Disability Evaluation/Examinations (no cite provided and no relevant passage located by the Board), that tropical sprue occurs solely in tropical regions such as the Far East, India, the Caribbean, and is poorly understood. In the alternative, the veteran's representatives request that a specialist in this area be contacted and be allowed to review the file and make a determination. II. Analysis Unlike civil actions, the VA benefit system requires more than just an allegation. The claimant must submit supporting evidence. Furthermore, the evidence must be sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The evidence submitted by the veteran in support of his claim of entitlement to service connection for tropical sprue consists of his own statements and medical records which indicate treatment for Crohn's disease. No diagnosis of tropical sprue by any medical professional is of record. Further, no examiner has supported his allegations that his present disability has any relationship to his active service. As noted above, the Court has issued several determinations regarding well-grounded claims pertinent to this case. The Court has held that a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical knowledge, skill, experience, training or education. Espiritu v. Derwinski, 2 Vet.App. 492, 494, 495 (1992). Moreover, the Court has held that, where determinative issues involve medical causation or diagnosis, there must be competent medical evidence supporting a claim to make it "plausible" and thus, well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The veteran's lay assertions, as well as those of his representative, to the effect that: (1) He has been misdiagnosed with Crohn's disease; (2) He currently suffers from tropical sprue; and (3) His current condition is the result of his active service, are neither competent nor probative of the issue in question. Very fundamentally, the veteran has failed to produce competent medical evidence that he currently suffers from tropical sprue. In Moray v. Brown, 5 Vet.App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions and, therefore, those opinions do not even serve as a basis for a well-grounded claim. In this case, there is no competent medical evidence of record to support his contention that there is a relationship between the veteran's active service and his current disability. The statement of Dr. Malvar solely indicates that the veteran has no history of Crohn's disease in his family. Dr. Malvar does not conclude that the veteran either has tropical sprue or that his current condition is related to service. The alleged citation to the Physician's Guide for Disability Evaluation/Examination also gives no weight to the veteran's claim, for it neither supports the veteran's contention that he has tropical sprue or supports the position that his condition is related to service. The representative has asserted that 38 U.S.C.A. § 1154 applies to this case. While this provision, and generally related regulatory provisions (for example 38 C.F.R. §§ 3.303(d), 3.304(d) (1993)) may obviate the need for a diagnosis or "official record" of a disorder in service in appropriate circumstances, they do not obviate the need for diagnosis post service, nor do they confer on a lay party the requisite medical expertise to render a diagnosis. As noted earlier, under the controlling law and decisions of the Court, the initial burden is on the shoulders of the veteran to demonstrate that the claim is well grounded. See Murphy at 81. The Board finds that the veteran has not presented any credible evidence to support his contention that he suffers from tropical sprue. The veteran's belief that his current condition has been misdiagnosed and that his current condition is related to a tropical sprue condition which had origin in service in Vietnam more than 20 years ago is not probative to the issue in question. Simply stated, the veteran is not competent to provide a medical diagnosis requiring specialized medical credentials concerning the origins of his own disability. The Court has made clear that if service medical records do not show the claimed disability, and there is no medical evidence to link a current disability with the events in service or with a service-connected disability, the claim is not well grounded. See Montgomery v. Brown, 4 Vet.App. 343 (1993) (Memorandum decision cited for persuasive reasoning per Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992)). In light of the discussion above, the application of law to the facts of this case mandates the conclusion that the appellant's claim for tropical sprue is not well grounded. The veteran's representative has requested that a specialist in the area of tropical sprue review the file and make a determination of the etiology of the veteran's condition. VA has a duty to assist the veteran in the development of facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991) (emphasis added). The Board has determined that the veteran's claim is not well grounded and that, accordingly, VA has no duty to assist the veteran in the development of facts pertinent to his claim. Accordingly, the request is denied. When the Board addresses in a decision a question that has not been addressed by the RO, as, in this case, the question of whether the veteran's claim is well grounded, it must be considered whether the claimant has been given adequate notice to respond and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 383 (1993). However, in light of the implausibility of the veteran's claim and his failure to meet the initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. In this regard, the Board would point out to the veteran that by this decision dismissing his claim is not well grounded, he is not burdened with a prior final adjudication on the merits. Thus, if he is able to submit a well-grounded claim in the future, he will not be faced with a higher hurdle of providing new and material evidence to reopen his claim after a prior adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The veteran may take the above discussion as guidance on how to submit a well- grounded claim. ORDER Entitlement to service connection for tropical sprue is dismissed. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.