Citation Nr: 0000941 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 93-26 457A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for a liver disorder on a direct basis. 2. Entitlement to service connection for a liver disorder as secondary to service-connected malaria. 3. Entitlement to service connection for a liver disorder as secondary to Bilharzia. 4. Entitlement to a compensable disability rating for service-connected chronic prostatitis. REPRESENTATION Appellant represented by: Vidal Rodriguez Amaro, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from September 1952 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, that denied the above-noted claims. In May 1998, a hearing was held before the undersigned Board member making this decision who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). The claim of entitlement to a compensable disability rating for service-connected chronic prostatitis is the subject of the remand immediately following this decision. FINDINGS OF FACT 1. No medical evidence has been presented or secured to render plausible a claim that any current liver disorder is the result of a disease or injury incurred in service. 2. No medical evidence has been presented or secured establishing a relationship between service-connected malaria and any liver disorder. 3. The veteran is not currently service-connected for Bilharzia. CONCLUSIONS OF LAW 1. The claim for service connection for a liver disorder on a direct basis is not well grounded and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for a liver disorder as secondary to service-connected malaria is not well grounded and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 3. Service connection for a liver disorder as secondary to Bilharzia is precluded by law. 38 C.F.R. §§ 3.310 (1999); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for a liver disorder The majority of the veteran's service medical records are not available and are presumed destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. His separation examination, dated August 1956, showed essentially normal clinical evaluation. Laboratory findings were also normal. It was noted that the veteran was hospitalized in Panama in 1955 for inguinal lymphadenitis. There were other minor complaints of no clinical significance. Under summary of defects and diagnoses, the examiner reported "none." Post-service medical evidence includes private treatment records dated in 1981 and VA treatment records dated from 1979 to 1992 and from 1996 to 1997. Liver disease due to alcohol intake was noted in October 1981. A liver abnormality was again noted in June 1982. Liver battery tests were improved in July and August 1982. In April 1983, the veteran gave a history of liver disease since 1981. A laboratory report showed an abnormal liver profile. The examiner diagnosed chronic liver disease by history. Liver/spleen imaging in October 1997 showed scintigraphic evidence suggesting the presence of mild diffuse parenchymal liver disease with reactive splenomegaly. The veteran offered lay statements on appeal, including at a personal hearing before the undersigned in May 1998. He stated that his current liver condition was acquired due to service-connected malaria and Bilharzia, and was not secondary to alcohol intake. He was reportedly hospitalized for Bilharzia for 10 days in 1954 at Fort Cobe, Canal Zone, Panama. However, no one told him that he had liver disease during active service. He stated that this condition affected him to such a degree that his liver has not properly functioned since that time. He always had liver pain. He was first diagnosed as having liver disease in 1979 or 1981. He was unable to obtain post-service treatment records from private physicians. Direct basis Establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The first responsibility of a person seeking entitlement to VA benefits is to state a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability is service connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible, i.e., meritorious on its own or capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. A well-grounded claim for direct service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 504-06 (1995). The United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has held that the second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during service or during 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 the post-service symptomatology. See 38 C.F.R. § 3.303(b); see also Brewer v. West, 11 Vet. App. 228, 231 (1998); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). 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) 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, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage, 10 Vet. App. at 495-98. For purposes of determining whether a claim is well grounded, the evidence is generally presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75- 76 (1995), citing King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the medical evidence of record indicates that the veteran currently suffers from mild diffuse parenchymal liver disease. A liver disorder was first diagnosed many years after service in 1981. Therefore, the Board finds that there is sufficient medical evidence of a current disability, and the first element of a well-grounded claim has been satisfied. The veteran maintains that he was treated for malaria and Bilharzia during active service, which resulted in liver symptomatology, i.e., pain. In view of the foregoing, the Board finds that there is sufficient lay evidence of incurrence of a disease and/or injury during service, and the second element of a well-grounded claim has been satisfied. However, the veteran has not satisfied the third element of a well-grounded claim for service connection. He has reported that he has suffered from liver symptomatology since active service. Presuming the history of continuity of symptomatology since active service to be credible for the purpose of establishing a well-grounded claim, there is still no medical evidence of record of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 497 (holding that veteran's own testimony that he sustained a back injury in service, walked with a limp ever since, and received heat treatments over the years is presumed credible for the purpose of establishing a well grounded claim because it is not inherently incredible or beyond the competence of a lay person to observe and continuity of symptomatology had therefore been established even if the record did not contain service medical records showing treatment in service for a back problem); see Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (per curiam order noting Board's fundamental authority to decide a claim in the alternative). Medical expertise is required to relate the present disability etiologically to the veteran's post- service symptoms. However, there are no medical opinions contained in any of the veteran's post-service medical records relating the current liver disorder to any inservice disease or injury or to the post-service symptomatology. To the contrary, this condition has been attributed to alcohol intake. See 38 C.F.R. §§ 3.1(n), 3.301(c)(2) (1999). The veteran is not competent to ascribe his post-service difficulties to active service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Although the veteran may have continuously experienced liver symptomatology since active service, there is no medical evidence in the record at all tending to show that there was an underlying chronic disability which caused the symptoms in service and that that underlying disability also has caused all the intermittent complaints of symptomatology experienced since service. Similarly, there is no medical evidence tending to show that the inservice symptoms represented a chronic liver disorder rather than an acute and transitory condition. Because no medical evidence has been presented or secured to render plausible a claim that the liver disorder diagnosed as early as 1981 had its onset in service or is the result of, or related to, any disease contracted or injury sustained in active military service, the Board concludes that this claim is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Secondary basis The veteran claims that service-connected malaria caused his current liver disorder. Service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). To establish a well-grounded claim for service connection for a disorder on a secondary basis, in addition to providing evidence of the existence of a current disability, the veteran must present medical evidence to render plausible a connection or relationship between the service-connected disorder and the new disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994). As noted above, for purposes of determining whether a claim is well grounded, the evidence is generally presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), citing King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the record lacks evidence of a relationship between the current liver disorder and any service-connected malaria. (Assuming that the veteran is properly service connected for malaria; see discussion in remand pertaining to clarification of a rating action by the RO.) There are no medical opinions contained in any of the medical records relating any liver disorder to malaria. The veteran lacks medical expertise and is not qualified to render an opinion regarding a causal relationship between his current liver disorder and malaria. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Without competent medical evidence establishing such a relationship, any claim for service connection for liver disease claimed to be due to malaria is not plausible, and it would be not well grounded. See Jones, 7 Vet. App. at 137. To the extent that the veteran is claiming entitlement to service connection for a liver disorder as secondary to a Bilharzia, the appeal must be terminated or denied as a matter of law because service connection has not been established for Bilharzia. See 38 C.F.R. § 3.310(a) (1999); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law). Duty to Assist The presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate a claim on the merits unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of these claims because such additional development would be futile. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d. 1464, 1468 (Fed. Cir. 1997). The Board finds VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits. 38 U.S.C.A. § 5103(a) (West 1991). Nothing in the record suggests the existence of evidence that might well ground the veteran's claim for service connection for a liver disorder on any basis. Additional efforts to obtain service medical records are not warranted, as the veteran has reported that he was not diagnosed as having a liver disorder during active service. Cf. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Indeed, he stated that this condition was not diagnosed until 1979 or 1981. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). Accordingly, the Board concludes that VA did not fail to meet its obligations with regard to the veteran's claims under 38 U.S.C.A. § 5103(a) (West 1991). ORDER Having found the claim not well grounded, entitlement to service connection for a liver disorder on a direct basis is denied. Having found the claim not well grounded, entitlement to service connection for a liver disorder as secondary to service-connected malaria is denied. There being no legal entitlement, the claim of entitlement to service connection for a liver disorder as secondary to Bilharzia is denied. REMAND Compensable disability rating for service-connected chronic prostatitis It is unclear whether or not the veteran has been properly service connected for prostatitis. The June 1993 rating decision on appeal indicates that it was amending a May 12, 1952, rating decision. There is no such rating decision of record, and according to the records on file, the veteran did not enter active service until September 1952. The rating decision further indicates that service connection for chronic prostatitis had been in effect since October 1951, prior to the veteran's active service. Moreover, another veteran's file number was originally listed on the rating decision and crossed out. On remand, the RO should clarify whether or not the veteran is properly service connected for prostatitis. If the veteran is service connected for this disability, the following development should be undertaken. The veteran underwent a VA genitourinary examination in July 1998. The report of that examination is inadequate. The report does not provide sufficient information for the Board to determine the current degree of impairment resulting from the veteran's service-connected prostatitis. The majority of the examination report is comprised of answers to a specific series of questions that are not included and to which the Board does not have access. There is a significant amount of information contained in those answers that can only be interpreted by reference to the questions. Since the Board does not have access to those specific questions, it is impossible to interpret the findings from the VA examination. The Board does not, therefore, have sufficient medical evidence upon which to decide the veteran's claim. On remand, the RO should obtain a comprehensive report of the July 1998 VA examination that includes the questions to which the examiner was responding. If the complete report is not available or if once obtained is still inadequate for rating purposes, the veteran should be reexamined. Any additional VA treatment records dated from 1992 to 1996 and from 1997 forward, as well as any available private treatment records, may also prove relevant to the veteran's claim and should be obtained on remand. Accordingly, while the Board sincerely regrets the further delay, this case is REMANDED for the following: 1. The RO should clarify whether or not the veteran is properly service connected for prostatitis. (See discussion in the remand section above.) If needed or required, this clarification should include obtaining another certification of the veteran's service dates. If the veteran is found to be properly service connected for prostatitis, the following development should be undertaken. 2. The RO should request that the veteran provide a list of those who have treated him for his service-connected prostatitis since 1992. After the list is submitted by the veteran, the RO should make arrangements in order to obtain copies of all records of any treatment reported by the veteran that are not already in the claims file. The Board is particularly interested in treatment received at any VA facilities from 1992 to 1996 and from 1997 forward. With respect to VA records, all records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. All records obtained should be associated with the claims file. If the RO is unable to obtain any private treatment records, the veteran and his representative should be informed and given an opportunity to obtain and submit the records. 38 C.F.R. § 3.159(c). 3. The RO should obtain a comprehensive report of the July 1998 VA genitourinary examination from the VA Medical Center in San Juan, Puerto Rico. The RO should make sure that the report contains the specific questions that prompted the examiner's responses in the original examination report. 4. If the above report is unavailable or inadequate for rating purposes once obtained, the veteran should be afforded a comprehensive examination to determine the current severity of his service- connected prostatitis. The claims folder and a copy of this remand are to be made available to the examiner prior to the examination. All tests deemed necessary by the examiner are to be performed. The examiner should identify what symptoms, if any, the veteran currently manifests or has manifested in the recent past that are attributable to his prostatitis, including any voiding dysfunction. The examiner should specifically comment as to the presence of any urine leakage, frequency or obstructed voiding. Are there any symptoms of hesitancy, slow or weak stream, decreased force of stream, stricture disease requiring periodic dilatation one to two times per year, recurrent urinary tract infections secondary to obstruction, markedly diminished peak flow rate (less than 10 cc/sec) or post void residuals greater than 150 cc? Is there continual urine leakage requiring the wearing of absorbent material, and if so, how often must these materials be changed each day? The examiner should also comment as to the existence of any pyuria, diurnal and nocturnal frequency, pain, tenesmus, contracted bladder, intervals between urination and incontinence. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the examiner's conclusion. If further testing or examination by other specialists is determined to be warranted in order to evaluate the condition at issue, such testing or examination is to be accomplished. 5. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. Specific attention is directed to the examination report. If the report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 6. The RO should then readjudicate the veteran's claim for increased rating, with application of all appropriate laws and regulations, and any additional information obtained as a result of this remand. The RO should also consider carefully and with heighten mindfulness the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). If the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). 7. The veteran is hereby informed that he has a right to present any additional evidence or argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); and Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is further advised that he should assist the RO in the development of his claim and that failure to cooperate may result in an adverse decision. Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). If the benefit sought on appeal is not granted to the complete satisfaction of the veteran, he and his representative should be provided with a supplemental statement of the case, which includes consideration of all medical evidence received since the supplemental statement of the case issued in December 1998 and all applicable criteria as described above. They should be afforded a reasonable period of time for response. Then, the claims folder should be returned to the Board for further appellate consideration, if in order. The veteran need take no action until he is so informed. The purpose of this REMAND is to obtain additional information and to comply with all due process considerations. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals