Citation Nr: 0004428 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 95-22 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for esophagitis. 2. Entitlement to service connection for a nasal disability. 3. Entitlement to service connection for disability manifested by dizzy spells. 4. Entitlement to service connection for disability manifested by swelling of the eyelids. 5. Entitlement to an increased rating for status post L4-5 laminectomy and L4-S1 fusion, currently evaluated as 20 percent disabling. WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from October 1985 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1995 and June 1996 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran initially disagreed with the denial of service connection for disability manifested by sore throats. However, in a signed statement, received in July 1995, he withdrew his appeal for service connection for disability manifested by sore throats. Therefore, this issue is no longer before the Board. In a June 1995 statement the veteran inquired as to why a consistent ringing in his ears was not considered in a May 1995 RO decision. The Board construes this as a claim for entitlement to service connection for tinnitus. The issue of entitlement to service connection for tinnitus is referred to the RO for its consideration. The issue of entitlement to an increased rating for low back disability is the subject of the remand portion of this decision. FINDINGS OF FACT 1. The claim of entitlement to service connection for esophagitis is not plausible. 2. The claim of entitlement to service connection for a nasal disability is not plausible. 3. The claim of entitlement to service connection for disability manifested by dizzy spells is not plausible. 4. The claim of entitlement to service connection for disability manifested by swelling of the eyelids is not plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for esophagitis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a nasal disability is not well grounded. 38 U.S.C.A. § 5107(a). 3. The claim of entitlement to service connection for disability manifested by dizzy spells is not well grounded. 38 U.S.C.A. § 5107(a). 4. The claim of entitlement to service connection for disability manifested by swelling of the eyelids is not well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question is whether the veteran's claims of entitlement to service connection are well grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). There must be more than a mere allegation, the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Moreover, where a determinative issue involves a diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). For the veteran's claim to be well grounded, there must be evidence both of a current disability and of an etiological relationship between that disability and service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Brammer v. Derwinski. 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In October 1997 the Board remanded the appeal so that the veteran might be afforded the opportunity to appear for a hearing before a member of the Board at the RO. By official letter, dated in January 1998, and directed to the address supplied by the veteran in August 1997, inquiry was made of the veteran with respect to his request for a hearing. The veteran did not respond and there is no indication that that letter was ever returned. By official letter, dated in April 1999 and directed to the same address, the veteran was informed that a hearing had been scheduled in June 1999. Although a subsequent reminder letter, dated in May 1999 and addressed to the same address, was returned, there is no indication that the April 1999 letter was ever returned and the veteran did not report for the hearing. Therefore, the Board concludes that the veteran has been afforded all appropriate due process with respect to his request for a hearing before a member of the Board at the RO. Service medical records reflect that the veteran was seen with complaints regarding his eyelids in 1988 and 1989. The assessment included urticaria and swelling. The veteran was also seen with sinus complaints. A November 1988 service medical record reflects an assessment including rule out sinusitis. In February 1995 the veteran was seen with complaints of dizziness. The assessment included dizziness of questionable etiology. Service medical records, including the report of the veteran's January 1995 service separation examination do not reflect any findings with respect to esophagitis or any chronic disability relating to swelling of the eyelids, nasal problems, or dizzy spells. The report of his January 1995 service separation examination reflects that his sinuses and eyes were normal and did not indicate any other pertinent findings with respect to his current claims for service connection. The report of an April 1995 VA general examination does not reflect any pertinent diagnoses. Private treatment records, dated in May 1995, reflect that the veteran had gastroesophageal reflux disease that appeared chronic. They indicate that the veteran had been in good health until a few days previous when he noted worsening heartburn and painful swallowing. He reported having lost 8 pounds in the previous 10 days. Reports of August 1995 VA examinations, reflect the veteran's complaints with respect to swelling of the eyelids and dizziness. The diagnoses included possible angioneurotic edema of the eyes and possible labyrinthitis. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999) In order for the veteran's claims of service connection to be well grounded, there must be competent medical evidence indicating that he currently has the disabilities and that they are related to active service. The competent medical evidence indicates that the veteran does have gastroesophageal reflux disease, but there is no competent medical evidence that it existed during service or that his currently manifested gastroesophageal reflux disease is related to active service. There is no competent medical evidence that the veteran currently has a chronic nasal disability. The competent medical evidence reflects that he may possibly have angioneurotic edema of the eyes and that he may possibly have labyrinthitis. However, there is no competent medical evidence that indicates that he definitely has either of these conditions or that either angioneurotic edema of the eyes or labyrinthitis are related to his active service. The veteran has offered testimony and statements that are presumed credible for purposes of this decision, but he is not qualified, as a lay person to establish a medical diagnosis or show a medical etiology merely by his own assertion, and such matters require medical expertise. See Grottveit and Espiritu. Further, the veteran has indicated that Dr. Asif Azeen has informed him that his gastroesophageal reflux disease had existed for two years when it was discovered, but a layman's account, filtered as it was through a layman's sensibilities, of which a doctor purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board therefore concludes that without the requisite competent medical evidence indicating that the veteran currently has the above-discussed disabilities and that they are related to active service, his claims of entitlement to service connection for these disabilities are not well grounded. Caluza. Although the Board has disposed of the claims of entitlement to service connection for the above-discussed disabilities on grounds different from that of the RO, that is, whether the veteran's claims are well grounded rather than whether he is entitled to prevail on the merits, the veteran has not been prejudiced by the Board's decision. In assuming that the claims are well grounded, the RO accorded the veteran greater consideration than his claims warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board views this discussion as sufficient to inform the veteran of the elements necessary to complete his application for claims for disability compensation for the above- discussed disabilities. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER Evidence of a well-grounded claim for service connection for esophagitis not having been submitted, the appeal with respect to this issue is denied. Evidence of a well-grounded claim for service connection for a nasal disability not having been submitted, the appeal with respect to this issue is denied. Evidence of a well-grounded claim for service connection for disability manifested by dizzy spells not having been submitted, the appeal with respect to this issue is denied. Evidence of a well-grounded claim for entitlement to service connection for disability manifested by swelling of the eyelids not having been submitted, the appeal with respect to this issue is denied. REMAND The report of the veteran's January 1995 service separation examination reflects that he had decreased range of motion of the spine. The report of an April 1995 VA general medical examination indicates that there was tenderness on flexion and extension. It also notes scars on the back as well as that the veteran's straight leg raising was positive on the right at 45 degrees and on the left at 60 degrees. However, the competent medical evidence does not reflect the veteran's range of motion of the low back. In light of the above, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request that he identify all postservice treatment that he has received for his service-connected low back disability. The RO should attempt to obtain copies of all records identified by the veteran relating to treatment of his low back since service. 2. Then, the RO should arrange for a VA examination of the veteran's low back to determine the nature and extent of his service-connected status post L4-5 laminectomy and L4-S1 fusion. All indicated studies should be performed and all findings reported in detail. The claims files should be made available to the examiner for review. The examiner should identify all symptoms that are related to the veteran's service- connected status post L4-5 laminectomy and L4-S1 fusion, including setting forth in degrees of excursion, any limitation of motion of the low back. The examiner is also requested to: (1) express an opinion as to whether pain that is related to the veteran's service- connected low back disability does significantly limit the functional ability of the low back during flare-ups, or when the low back is used repeatedly over a period of time, and express the determinations, if feasible, in terms of additional loss of range of motion due to pain on use or during flare-ups; (2) determine whether as a result of the service-connected low back disability, the low back exhibits weakened movement, excess fatigability, or incoordination, and express these determinations, if feasible, in terms of the additional loss of range of motion due to any weakened movement, excess fatigability, or incoordination. The examiner is also requested to identify any scars related to the veteran's service-connected low back disability. With respect to any identified scar the examiner should indicate whether or not they are superficial, poorly nourished, have repeated ulceration, are tender and painful on objective demonstration or limit the function of any part. A complete rationale should be provided for any opinion offered. 3. Then, the RO should undertake any further indicated development and readjudicate the issue currently remaining on appeal, taking into account 38 C.F.R. §§ 4.40, 4.45 (1999); VAOPGCPREC 36-97; and DeLuca v. Brown, 8 Vet. App. 202 (1995); where applicable. 4. If the benefit sought on appeal is not granted to the veteran's satisfaction or if a timely notice of disagreement is received with respect to any other matter, the veteran should be provided a supplemental statement of the case on all issues in appellate status and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran until he is otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). MILO H. HAWLEY Acting Member, Board of Veterans' Appeals Error! Not a valid link.