Citation Nr: 0007926 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 96-32 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for respiratory and sinus conditions, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Associate Counsel INTRODUCTION The veteran served on active duty from February 1988 to June 1988 and from November 1990 to July 1991, including service in the Southwest Asia theater from January 1991 to June 1991. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 1999, the Board remanded the case to the RO for additional adjudication. The case is once again before the Board for appellate review. FINDINGS OF FACT 1. Competent medical evidence has indicated that the veteran may suffer from respiratory and sinus conditions as a result of his period of active military service. 2. Competent medical evidence has indicated that the veteran may suffer from a gastrointestinal disorder as a result of his period of active military service. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for respiratory and sinus conditions is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for a gastrointestinal disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims that he currently suffers a respiratory condition, a sinus condition and a gastrointestinal disorder as a result of service. He maintains that each of these conditions is the result of an undiagnosed illness stemming from his service in the Persian Gulf. I. Applicable Criteria In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also 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. See 38 C.F.R. § 3.303(d). Statutes and regulations provide additional means for Persian Gulf veterans to qualify for service connection for a disability. See 38 U.S.C.A. § 1117 (West 1991 & Supp. 1999); 38 C.F.R. § 3.317 (1999). The veteran's service records document that he had active service in Southwest Asia during the Persian Gulf War. Hence, the veteran is a Persian Gulf veteran for purposes of awarding VA disability compensation. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d). Under 38 C.F.R. § 3.317(a)(1), compensation may be paid to a Persian Gulf veteran who "exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms," provided that such disability was manifest to a degree of 10 percent or more prior to December 21, 2001, and that it cannot, by history, physical examination, or laboratory tests, be attributed to any known clinical diagnosis. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period should be considered "chronic" for purposes of adjudication. See 38 C.F.R. § 3.317. Objective indications include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(2). In this regard, VA has stated that non-medical indicators of an illness may include evidence of time lost from work, evidence the veteran has sought medical treatment for his symptoms, and "[l]ay statements from individuals who establish that they are able from personal experience to make their observations or statements." See Compensation for Certain Undiagnosed Illnesses, 60 Fed. Reg. 6660, 6663 (1995). To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. See 38 C.F.R. § 3.317, as amended by 62 Fed. Reg. 23, 139 (1997). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). When a veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a), the VA has a duty to assist the veteran in the development of his claim. See 38 U.S.C.A. § 5107(a). However, the Court has held that in the absence of evidence of a well-grounded claim, the VA is prohibited in assisting the claimant. See Morton v. West, 12 Vet. App. 477 (1999). Under a direct service-connected theory, the veteran must satisfy three elements for each of his claims for service connection to be well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be evidence of incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence. Lastly, there must be evidence of a nexus or relationship between the in-service injury or disease and the current disorder, as shown through medical evidence. See Epps v. Gober, 126 F.3d 1464, 1468 (1997). Alternatively, a claim may be well grounded by showing a link to service based upon the application of the rule for chronicity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997). II. Analysis The Board finds that the veteran's claims are well grounded. In particular, competent evidence suggests that the veteran's sinus condition, respiratory condition, and gastrointestinal disorder are possibly related to service. Service medical records reflect that the veteran was seen on several occasions for problems involving his sinuses, his lungs and his gastrointestinal system. At a redeployment examination in April 1991, the veteran reported indigestion and frequent diarrhea. The physician noted that the veteran had had mucous in his stools since May 1991. The veteran reported that he had had a cough and a sinus infection, as well as abdominal pain, nausea and bloody bowel movements. He also stated that he was exposed to chemical and/or germ warfare in the Persian Gulf. When examined in September 1994, the veteran explained that he had been experiencing a sinus infection and stomach problems since he returned from Saudi Arabia. Subsequent medical records reveal that the veteran has been diagnosed with irritable bowel syndrome and sinusitis, which may be related to his service in the Persian Gulf. In a July 1996 letter, Roger O. Snyder, M.D., stated that the veteran suffered from irritable bowel syndrome since he was in Saudi Arabia in 1991. Dr. Snyder commented in a November 1996 letter that the veteran's irritable bowel syndrome was manifested by cramping and diarrhea. In contrast, however, P.K. Raman, M.D., stated in a July 1992 letter that the veteran's gastrointestinal problems may be due to his diet and lactose intolerance. With respect to the veteran's breathing problems, claimed as sinus and respiratory conditions, James R. Hessler, M.D., Ph.D., addressed these problems in a March 1994 letter. Dr. Hessler evaluated the veteran for throat discomfort. His impression was "chronic pharyngitis/dysphagia or globus-type symptomatology that may be related to chemical warfare exposure. Records from Samaritan Hospital also show that the veteran was treated in 1993 for an upper respiratory infection, a left pneumothorax, and sinusitis. Based on the foregoing, the Board finds that competent evidence shows that the veteran suffers from a respiratory condition, a sinus condition, and a gastrointestinal disorder which may or may not be related to his period of active military service. The Board finds that this evidence is sufficient to render these claims plausible and capable of substantiation. Therefore, the claims are well grounded. See 38 U.S.C.A. § 5107(a); Caluza v. Brown, 7 Vet. App. 498, 505-06 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (per curiam). The Board also notes that such findings do not go to the merits of the claims, but rather to the threshold burden which the veteran must satisfy pursuant to 38 U.S.C.A. § 5107. As these claims are well grounded, the VA has a duty to assist under 38 U.S.C.A. § 5107(a) before adjudicating the merits of the claims. For the reasons set forth in the Remand, the Board finds that further development must be accomplished by the RO. ORDER The veteran's claim for service connection for respiratory and sinus conditions is well grounded, and, to this extent only, the appeal is granted. The veteran's claim for service connection for a gastrointestinal disorder is well grounded, and, to this extent only, the appeal is granted. REMAND Given that the veteran has presented evidence of well- grounded claims for service connection, the Board observes that the VA has a further obligation to assist him in the development of evidence to support his claims. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps, 126 F.3d 1464. Based on the current record, the Board concludes that further medical development is warranted with respect to the veteran's claims. The evidence which appears to support the veteran's claims is outlined above. The Board notes that the veteran's claimed disabilities appear to be attributable to known clinical diagnosis, i.e., sinusitis, upper respiratory infection, and irritable bowel syndrome. As such, the veteran may not be afforded the presumption under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Nevertheless, some evidence of record supports the veteran's claims based on a direct theory of service connection. See 38 C.F.R. § 3.303. This evidence, however, is not based on a review of the veteran's claims file. In Swann v. Brown, 5 Vet. App. 177, 180 (1993), the Court held that, without a review of the claims file, an opinion as to etiology of an underlying condition can be no better than the facts alleged by the veteran. See Black v. Brown, 5 Vet. App. 177, 180 (1993); see also Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (rejecting a medical opinion as "immaterial" where there was no indication that the physician reviewed the claimant's service medical records or any other relevant documents which would have enabled him to form an opinion on service connection on an independent basis). The Board may not refute expert medical conclusions in the record with its own unsubstantiated medical conclusions; if the medical evidence of record is insufficient, or of doubtful weight or credibility, the Board may supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises in its decisions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds that further development is warranted in this regard, to include comprehensive VA examinations to determine the nature and etiology of any current respiratory, sinus and gastrointestinal disorders found. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should afford the veteran appropriate VA examinations to determine the nature, extent, and etiology of his respiratory condition, sinus condition and gastrointestinal disorder. The veteran's claims file should be made available to the examiners, each of whom should review the claims file in conjunction with the examinations. All necessary tests and studies should be accomplished, and the examiners should comment upon whether the veteran suffers from each of the disabilities noted above. The examiners should also clearly indicate whether any such disabilities noted upon examination are attributable to a specific ongoing disease process or to an undiagnosed illness. For each disability noted upon examination, the examiners should provide an opinion as to whether it is at least as likely as not that such disability is related to service, namely his service in the Southwest Asia theater of operations. All opinions and conclusions expressed must be accompanied by a complete rationale. 2. The RO should review the examination reports to determine if they are in compliance with this Remand. If any report is deficient, it should be returned, along with the claims file, for immediate corrective action. 3. After undertaking any additional development deemed appropriate, and giving the veteran full opportunity to supplement the record, the RO should then adjudicate the veteran's claim of entitlement to service connection for respiratory and sinus conditions, as well as his claim for service connection for a gastrointestinal disorder. If any benefit sought on appeal is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional evidence. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). WARREN W. RICE, JR. Member, Board of Veterans' Appeals