Citation Nr: 0006109 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 95-34 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for pancreatitis. 2. Entitlement to service connection for peripheral neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from June 1963 to September 1966. This matter arises before the Board of Veterans' Appeals (Board) from a May 1994 rating decision by the Department of Veterans Affairs (VA) Boston Regional Office (RO) that denied entitlement to service connection for pancreatitis and peripheral neuropathy. This matter was remanded by the Board in September 1998 in order to afford the veteran the opportunity for his requested hearing before a Member of the Board. Such hearing was held in August 1999. FINDINGS OF FACT 1. Pancreatitis was not initially manifested in service and is not shown to be otherwise related thereto. 2. Medical evidence of a nexus between peripheral neuropathy and the veteran's period of service has not been submitted. CONCLUSIONS OF LAW 1. Pancreatitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The veteran's claim of entitlement to service connection for peripheral neuropathy is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The veteran's service medical records are apparently not complete. Available records include a May 1963 examination report that is silent for any pertinent findings. Also included is a September 1966 examination report for the purpose of release from active duty that reveals no pertinent abnormalities. The veteran submitted private medical hospital records for admission in November 1968 related to active gastric ulcer. At that time, the veteran had complained of severe abdominal pain that had been ongoing for several months. The diagnosis rendered at that time was peptic ulcer. Several tests were conducted and a gastric ulcer was found. X-ray findings included normal liver, spleen, esophagus, healed gastric ulcer, and no evidence of a hiatal hernia. Further noted is that on the posterior wall of the stomach, there was an active ulcer crater without evidence of a mass. Otherwise, the stomach was noted as normal. An oral cholecystogram revealed a normal concentration in the gallbladder and satisfactory response to fat stimulus. All other findings were normal. The veteran's wife provided a lay statement in August 1974 attesting to the veteran's surgeries for his various gastrointestinal disorders. Private hospital records dated in 1974 reveal diagnoses of chronic pancreatitis and other gastric disorders. Overall, the veteran continued to complain of severe abdominal pains and nausea that he reportedly had been experiencing since service. In August 1974, the veteran underwent exploratory surgery that included cholecystectomy and pancreatic sphincterectomies. A private medical doctor's statement dated in October 1974 discloses the veteran's prior hospitalization admission for acute pancreatitis. Subsequently, a statement by a physician from a private medical hospital dated in February 1975 discloses that the veteran had been treated at that facility for a period of over several years for acute and chronic pancreatitis, which included a sphincteroplasty. A VA radiograph report dated in April 1975 reveals no abnormality in the intestinal gas patterns, no evidence of intestinal obstruction or abnormal calcification or any other related abnormality. A VA examination report dated in April 1975 includes a recitation of the veteran's hospitalizations with respect to pancreatitis. The veteran reported that in 1968, he had been diagnosed with an ulcer. Past medical history is indicative of initial complaints of stomach-related problems in 1973; subsequently, a diagnosis of pancreatitis was made in 1974. Further, the veteran reported that prior to treatment for pancreatitis, in August 1974, his gall bladder was removed and a hiatal hernia was repaired. During the 1975 examination, the examiner rendered a diagnosis of chronic pancreatitis. Private medical and hospital records dated in November 1975 reveal that the veteran underwent surgical procedures related to his chronic pancreatitis. The post-operative diagnosis remained the same. VA examination conducted in May 1978 included complaints of pain in the left upper extremity and frequent diarrhea. The veteran's history of hospitalization and treatment by a gastroenterologist for chronic pancreatitis was recited in the examination report. In pertinent part, the diagnosis rendered was chronic pancreatitis with frequent pain. In April 1979, the veteran claimed that his pancreatitis was due to exposure to Agent Orange while in Vietnam. In rating decision dated in April 1980, the RO denied such claim. In a VA memorandum dated in October 1982, the RO indicated that the veteran was being treated as an inpatient at a private medical facility. VA examination report dated in December 1982 reveals ongoing complaints of severe stomach-related troubles and pain. In a recitation of the veteran's past medical history, it is noted that the veteran developed epigastric pain during service, was diagnosed with peptic ulcer in 1966, and with chronic nonalcoholic pancreatis in 1971. Also noted is that the veteran had been released from the hospital recently in November 1982. Findings related to the digestive system included no masses, multiple epigastric scars, and diffuse tenderness in the epigastrium area to the back. Also noted is a history of chronic pancreatic insufficiency complicated by glucose intolerance. VA and private outpatient records for treatment extending from 1992 to 1998 reveal overall diagnoses of chronic pancreatitis and peptic ulcer disease and complaints of numbness and tingling. In an October 1992 medical entry and in subsequent clinical records throughout that period of time, the examiner noted numbness and tingling in the left arm and on the left side of the face. Also noted are complaints of abdominal pain, nausea, and diarrhea. A private physician's statement dated in June 1993 reveals a diagnosis of severe neuropathy of the legs. In July 1993, the veteran claimed entitlement to service connection for neuropathy due to exposure to Agent Orange. In January 1996, the veteran had a personal hearing during which time he testified that he began to experience stomach problems, including diarrhea and cramps, while in service. Transcript (T.) at 3. The veteran testified that he only saw a doctor for some unrelated problems and that in general, the corpsmen handed out antacids for his stomach. (T.) at 3. The veteran further testified that he thought his problems stemmed from exposure to nitro and the hot air. (T.) at 4. Also, the veteran testified that Agent Orange was sprayed all around him and that as long as he could remember, he had experienced itching and burning in his hands and feet. (T.) at 4. When discharged, the veteran stated that he did not recall seeing a doctor. (T.) at 4. Since separation from service, the veteran stated that he has sought treatment constantly. (T.) at 5. Further, he stated that he continued to get sicker over time and that in 1974, he was diagnosed with pancreatitis. (T.) at 6. The veteran also testified that at the time in which he was being treated for pancreatitis, the doctors told him that he had had that problem for many years. (T.) at 6. The veteran also recalled that he had been hospitalized in 1968 for ulcer and other stomach problems. (T.) at 6. The veteran testified that he has been receiving Social Security since 1974. (T.) at 7. The veteran's daughter also testified that she had always seen her father sick and not capable of doing a lot of things with her since she was young. (T.) at 8. Further, she testified that the veteran's current doctor dates the veteran's stomach problems back to service. (T.) at 9. With respect to the veteran's peripheral neuropathy, he stated that he began to have problems within a year of separation from service with numbness and burning sensations in his feet. (T.) at 9. Over the years, the symptoms also manifested themselves in his hands. (T.) at 9. The veteran first sought treatment for his neuropathy in 1973 and that doctor indicated to him that his problems had their origin in service. (T.) at 10. Further, the veteran testified that the doctor who was treating his neuropathy told him that his problems probably derived from exposure to Agent Orange. (T.) at 10. In a statement dated in September 1996, Joseph L. Perrotto, M.D., recited that he had treated the veteran over the course of 20 years for symptoms related to his pancreatitis, including several surgeries. The physician also noted the veteran's severe peripheral neuropathy. The physician gave an opinion that the veteran's disabilities of pancreatitis and peripheral neuropathy appear to have been initiated approximately at the time he was in service in Vietnam. The veteran's spouse submitted a personal statement in June 1997. The veteran and his daughter submitted personal statements with respect to the veteran's disability dated in March 1999. During the veteran's Travel Board hearing conducted in August 1999, the veteran gave the same testimony basically that he had given during his prior hearing. Overall, he stated that when he got out of the service in 1966, he continued to seek treatment for his stomach disorder, was hospitalized in 1968 for what appeared to be an ulcer, and which later turned out to be pancreatitis. As to the veteran's circulatory problems, he testified again that he had experienced tingling and numbness for as long as he could remember. When asked whether he had seen a neurologist while in Vietnam for this problem, the veteran stated that he had not because most of the health problems were handled by the corpsman. The veteran also stated that the same doctor who treated him for his stomach problems after service also treated him for the circulatory problems. He further stated that he has been taking prescription B complex for his neuropathy for many years. In the late 1960s, the veteran said that he sought treatment at a VA facility for his neuropathy and has been treated as an outpatient at the Bedford Hospital since that time. A medical opinion, dated in December 1999, was obtained from a VA physician, a specialist in gastrointestinal medicine. This physician reviewed the clinical data and medical findings reported in the veteran's claims folder. Overall, the physician noted that with respect to the veteran's reported gastrointestinal symptoms during his period of service, the record does not reflect such treatment. Furthermore, it was remarked that the veteran indeed was treated for a radiographically confirmed gastric ulcer in November 1968 that subsequently healed. Moreover, the VA physician opined that there is no evidence of record to substantiate that pancreatitis was diagnosed prior to 1974. Additionally, the physician stated that the only service medical record of any relevance is the July 1973 medical record on which the veteran noted that he did not have any gastrointestinal or digestive problems. Analysis The issues before the Board are whether the veteran is entitled to service connection for pancreatitis and for peripheral neuropathy. A veteran is entitled to service connection for disability resulting from disease or injury coincident with active service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.306(a) (1999). 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) (1999). Under applicable criteria, if a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain specified soft- tissue sarcomas. 38 C.F.R. § 3.309(e) (1999). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to a herbicide agent during active military, naval, or air service. Acute and subacute peripheral neuropathy mean transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary has also determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See 64 Fed. Reg. 59232-59243 (November 2, 1999); see also Disease Not Associated With Exposure to Certain Herbicide Agents, 59 Fed. Reg. 341-46 (Jan. 4, 1994). Notwithstanding the foregoing, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1999). However, the Court has held that under the plain language of 38 U.S.C. § 1116(a)(3) and 38 C.F.R. § 3.307(a)(6)(iii), the incurrence element of a well-grounded claim is not satisfied where the veteran has not developed a condition enumerated in either 38 U.S.C. § 1116(a) or 38 C.F.R. § 3.309(e). In other words, both service in the Republic of Vietnam during the designated time period and the establishment of one of the listed diseases is required in order to establish entitlement to the in-service presumption of exposure to an herbicide agent. McCartt v. West, 12 Vet. App. 164 (1999). "[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.A. § 5107(a); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, and hereinafter referred to as Court) requires 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.) Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), aff'd sub nom. Epps v. Brown, 9 Vet. App. 341 (1996). The Court has further held that the second and third elements of a well grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Pancreatitis The veteran asserts that his pancreatitis had its onset in service at the time he was experiencing stomach and gastric problems while serving in Vietnam. In this case, the veteran has established a well grounded claim in that he has submitted medical evidence of gastric-related problems since shortly after service and there is competent evidence of continuity of both symptomatology and treatment of gastrointestinal disorders, including chronic pancreatitis to date. In this regard, the Board finds that facts relevant to the issue on appeal have been properly developed and VA's statutory obligation to assist the veteran in the development of the claim has been satisfied. 38 U.S.C.A. § 5107(a). In so observing, the Board has carefully considered the veteran's account of continued symptomatology since his discharge from active duty in September 1966. However, in Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court held that the veteran is not relieved of the burden of providing a medical nexus between service and the currently claimed disability. In this case the veteran has failed to do so. Following a comprehensive analysis of the record, the Board is of the opinion that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for his pancreatitis. The Board acknowledges that the record does contain multiple clinical records that pertain to treatment of the veteran's chronic pancreatitis from the time in which he was diagnosed in 1974 to date. Thus, clearly there is a current disability. Furthermore, leading up to the diagnosis of pancreatitis in 1974 are records that disclose ongoing complaints of severe abdominal pain and treatment for significant gastrointestinal disorders including a peptic ulcer, and a gastric ulcer. Additionally, documentation in the record reveals that the veteran had been complaining of severe abdominal pain over a period of several months even at the time when he was hospitalized earlier in November 1968. A private physician who has treated the veteran for gastrointestinal conditions, Dr. Perrotto, suggested that pancreatitis apparently had its onset during the veteran's period of military service. This opinion, however, is not shown to have been based on the review of the entire record, but rather only on a history provided by the veteran. On the other hand, the December 1999 VA medical opinion, which essentially finds no clinical evidence of record to connect post-service chronic pancreatitis to the reported symptomatology during the veteran's period of service, was based on a review of the entire record by a specialist in gastrointestinal medicine. This physician stated that there is no evidence of record to suggest that any of the veteran's reported symptoms prior to 1974 relate to the diagnosis of chronic pancreatitis. Moreover, it was considered significant that in a July 1973 record, the veteran stated unequivocally that he did not have any gastrointestinal or digestive problems. The Board acknowledges that the veteran is competent to testify as to his inservice experiences and symptoms; however, only those individuals who possess specialized medical training and knowledge are competent to render an opinion as to medical diagnosis or causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence in this case does not reflect that the veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses or causation competent. Thus, as a lay person this veteran is capable of recounting facts and circumstances related to his inservice events, he is not competent to render a medical opinion that the inservice events relate to his current pancreatitis. Moreover, statements provided by the veteran's daughter and sister in which they attest to the veteran's symptoms and history of pancreatitis also do not rise to the level of competent medical opinions so as to warrant entitlement to service connection. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, the Board finds the December 1999 medical opinion more probative to the question at issue. A medical opinion is inadequate when it is a general conclusion based on history furnished by the appellant and on unsupported clinical evidence. Black v. Brown, 5 Vet.App. 177 (1993). An etiologic opinion based on a review of the chart is entitled to far greater weight than an opinion not so supported or a diagnosis that is merely the product of a history elicited from the claimant. See Wilson v. Derwinski, 2 Vet. App. 16, 20-21 (1991) (an opinion relating a current disability to service has more probative value when it takes into account the records of prior medical treatment so that the opinion is a fully informed one). Based on the December 1999 medical opinion and in conjunction with the remaining clinical evidence of record, the service connection for pancreatitis is not warranted. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. Peripheral neuropathy In this case, the Board notes that the veteran has not established a well grounded claim with respect to peripheral neuropathy. Essentially, the veteran has failed to submit competent evidence that any post-service neuropathy is related to his period of service. As stated above, service connection may be granted for disability resulting from disease or injury coincident with active service, or if such disability preexisted service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.306(a). Nonetheless, a preliminary inquiry is whether the veteran has established a well grounded claim. Caluza v. Brown, 7 Vet. App. 498, 506. In this regard, the veteran in this case has not presented medical evidence of a nexus between any post- service peripheral neuropathy and his period of active service. Specifically, the veteran has not submitted competent evidence to substantiate his allegations that he has peripheral neuropathy related to burning, numbness, and itching that he reportedly experienced during his period of service in Vietnam. As noted earlier herein, the veteran's service medical records are negative for any relevant information, notations, diagnoses, or clinical findings. Acute or subacute peripheral neuropathy was not manifested proximate to the veteran's service in Vietnam. Furthermore, as relates to the veteran's assertions that his post-service peripheral neuropathy stems from exposure to Agent Orange, there is also no evidence to support such claims. Thus, in this respect, the veteran has failed to establish a well grounded claim. In fact, there is only one record dated in 1993, more than 2 decades after service, in which the physician diagnoses the veteran with severe neuropathy of the legs. Thus, in this sense, the evidence of record does not support that peripheral neuropathy was evident during service or that any post-service peripheral neuropathy is related to the veteran's period of service. Therefore, the veteran's claim of entitlement to service connection for peripheral neuropathy must be denied for failure to establish a well grounded claim. 38 U.S.C.A. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER Entitlement to service connection for pancreatitis is denied. Entitlement to service connection for peripheral neuropathy is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals