Citation Nr: 0000444 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 95-21 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for pancreatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, M.G., A.G., and S.O. ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The veteran served on active duty from March 1952 to August 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision of the Boston, Massachusetts, Department of Veterans Affairs (VA), Regional Office (RO). This matter was remanded to the RO in January 1999. FINDING OF FACT Competent evidence demonstrating that the current diagnosis of pancreatitis is medically related to the veteran's period of service has not been presented. CONCLUSION OF LAW The claim of entitlement to service connection for pancreatitis is not well-grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pertinent Law and Regulations In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). In addition, the veteran served continuously for ninety (90) or more days during a period of war, therefore, if endocrinopathies became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, that condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be granted for a disability initially diagnosed after service when shown to be related to service. 38 C.F.R. § 3.303(d) (1999). A veteran claiming entitlement to 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. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (formerly the Court of Veterans Appeals) (the Court) has defined "well- grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Such a claim need not be conclusive, but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Id. A claim must be more than just an allegation; a claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). If a claim is not well- grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, the VA does not have a duty to assist the veteran further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), the Court held 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). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. §5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. The Court has also held that the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Analysis The veteran asserts that he is entitled to service connection for chronic pancreatitis. He argues that he developed pancreatitis as a result of experimental testing that he underwent in service in 1958. At the hearing before the Board in August 1999, the veteran stated that while he was stationed at the Quonset Point Naval Air Station, he underwent a left eye operation, and during that time, he was asked if he wanted to join a group for invasive radioactive testing. Hearing Transcript, hereinafter Tr., 3. He indicated that it was called a "tryaline" study. Tr. 3. The veteran stated that he was fed three meals a day and a radioactive fluid was injected in the food; it tasted sweet or syrupy. Tr. 4. He stated that after one or two days, he started to get abdominal cramps. Tr. 4. The veteran indicated that the nurses and doctors never told him their names. Tr. 4. He stated that he was told that he was in the test because they were doing a study of how radioactivity reacted in minor quantities to the human being. Tr. 5. The veteran indicated that the fifth day after the testing started, he started to throw up blood and they immediately stopped all testing. Tr. 5. The symptoms he had included chronic diarrhea, cramps and an inability to hold down food. Tr. 5. He indicated that he was put on a dose of Amphojel. Tr. 5. The veteran indicated that the diagnosis was a gastrointestinal disorder. Tr. 6. He stated that in those days, they did not have the technology they have now, and they could not see that the pancreas was inflamed. Tr. 6. He indicated that it was a number of years later that pancreatitis was diagnosed. Tr. 6. The veteran stated that he was currently taking Pancrease for the past twelve years for pancreatitis. Tr. 7. The veteran asserted, in essence, that he was told by the Government not to bring up the testing for ten years, if he wanted to stay healthy and if he wanted his family to stay healthy; the veteran was scared. Tr. 9 and 10. At the hearing before the RO in September 1995, the veteran stated that the experiment caused inflammation of his pancreas, and the pancreas subsequently calcified. Tr. 6. The veteran has submitted competent medical evidence that he currently has pancreatitis. In a June 1993 statement, Patricia E. Kearney, M.D., stated that the veteran has a history of chronic pancreatitis. Dr. Kearney indicated that the veteran had an abdominal computed tomography (CT) scan in July 1993, which revealed that there were calcifications within the pancreatic head and the uncinate process, which were felt to be consistent with chronic pancreatitis. The veteran required treatment with Pancrease for replacement of the pancreatic enzymes. A February 1994 hospital record from the South Shore Hospital reflects a diagnosis of pancreatic insufficiency, on Pancrease. The Board finds that there is no competent medical evidence which establishes that pancreatitis first manifested in service or was diagnosed in service. The service medical records are silent for complaints, treatment, or diagnosis of pancreatitis or any other pancreatic disorder. Significantly, the service medical records dated in December 1958 indicate that tests for pancreatic function were within normal limits. Service medical records, dated in April 1958, indicate that the veteran had been admitted for corrective surgery for exotropia. It was noted that after the surgery, the veteran developed symptoms of nausea, vomiting, diarrhea, and a 10 pound weight loss. The veteran was evaluated and seven stool examinations for occult blood and three stool examinations for enteric pathogens were negative. Additional tests, including a gastrointestinal series, barium enema, and chest X-ray examination, were also negative. It was explained to the veteran that the symptoms were probably on the basis of nerves and they would soon improve. A December 1958 Report of Board of Medical Survey reflects a diagnosis of psychogenic gastrointestinal reaction, manifested by pain in the stomach. It was noted that the veteran was admitted for evaluation of diarrhea of approximately two weeks duration. Examination was entirely within normal limits. Laboratory tests, including blood count, were normal or negative. Multiple examinations of stools for occult blood, ova, parasites, and bacterial cultures were all negative. A test for pancreatic function including glucose tolerance test, serum amylase, and lipase activity, and a Triolain test with the determination of fecal excretion of fat, were well within normal limits. The veteran underwent extensive examination, including a neuropsychiatric examination. It was concluded that the diarrhea was on a psychogenic basis and that there was probably very little organic basis. The diagnosis was psychogenic gastrointestinal reaction manifested by abdominal pain and diarrhea was substantiated. In June 1959, the Physical Evaluation Board determined that the veteran was unfit to perform the duties due to the psychogenic gastrointestinal reaction, chronic, moderate. The Board notes that in October 1962, service connection was established for psychophysiologic gastrointestinal reaction manifested by diarrhea, evaluated as 10 percent disabling. The Board finds that the veteran has not submitted competent evidence that he underwent "radioactive testing" in service. There is competent evidence which establishes that the veteran underwent extensive medical testing during service to determine the cause of abdominal symptoms. The records of the inservice evaluations make no mention of experimental testing of any kind. The Board finds that the veteran's statements, that he was exposed to radioactive testing in service and that he was fed radioactive substances, is not competent evidence to establish that he actually was exposed to radiation or radioactive substances. The veteran himself does not possess the technical or specialized knowledge to provide a probative conclusion with respect to the issue of whether he ingested a radioactive substance or whether he was exposed to radiation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran is competent to testify as to whether he ingested food or a substance and what the substance looked like or tasted like, and he is competent to provide an account of his symptoms. However, he is not competent to provide a probative scientific conclusion with respect to whether food he ingested was exposed to radiation or whether he was exposed to a radioactive material. The veteran has submitted lay statements by acquaintances, S.B. and A.G. In the statements, S.B. and A.G. indicated that they had served with the veteran and that the veteran had undergone radioactive testing or experiments in 1958. S.B. stated that the veteran told him that the testing made him sick. A.G. indicated that the veteran indicated that he had volunteered for a test where he had to take radioactive solutions with each meal and he had stomach pain and vomiting. A.G. stated that the veteran had problems with his stomach for the last 35 years. The Board does not find this to be competent evidence that the veteran underwent radioactive testing in service, since the evidence of record does not establish that S.B. and A.G. have the technical or specialized knowledge to provide a probative conclusion with respect to the issue of whether the veteran was exposed to radioactive substances or ingested radioactive substances. See Espiritu, supra. Thus, these statements are not sufficient evidence to establish that the veteran underwent radioactive testing. Review of the record reveals that there is no competent medical evidence that a pancreatic disorder was diagnosed in service. As noted above, service medical records, dated in 1958, indicate that testing of the pancreatic function was normal. The veteran has not submitted evidence of a diagnosis of pancreatitis within one year from service separation in August 1959. Therefore, the provisions of 38 C.F.R. §§ 3.307 and 3.309 do not establish entitlement to service connection for pancreatitis on a presumptive basis. The evidence of record does not establish a diagnosis of chronic pancreatitis in service. Therefore, the provisions of 38 C.F.R. § 3.303(b) do not assist the veteran in the submission of a plausible claim. The veteran asserts that he has experienced abdominal pain, diarrhea, and vomiting since service and that such symptoms are due to the pancreatitis. He has submitted statements by friends and family in support of his contentions. In such statements, the veteran's acquaintances stated that the veteran had stomach problems for 35 years. The Board finds that this evidence is not sufficient to establish that the veteran had pancreatitis in service and that he continued to experience continuity of symptomatology since service. As noted above, psychogenic gastrointestinal reaction, manifested by pain in the stomach, was diagnosed in service. Service connection was established for this disorder in 1962. The evidence of record further shows that the veteran experienced gastrointestinal symptoms due to this disorder. The Board finds that the veteran and his acquaintances are not competent to render a medical opinion as to whether the veteran's abdominal symptomatology was due to pancreatitis. Although the veteran and other lay persons are competent to provide an account of the veteran's symptoms, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge." Espiritu, supra. The veteran and his acquaintances do not possess the technical or specialized knowledge to provide a probative conclusion with respect to the etiology of his abdominal symptoms or whether such symptoms are due to pancreatitis, the psychogenic gastrointestinal reaction, or a nonservice-connected gastrointestinal disorders. See Espiritu, supra. The Board acknowledges that the veteran has submitted competent medical evidence that the pancreatitis caused abdominal pain in 1993 and 1994. However, he has not submitted competent medical evidence which establishes that pancreatitis has caused abdominal pain in service or since he separated from service. The veteran has not submitted competent medical evidence which medically relates the pancreatitis to his period of service. Review of the record reveals that pancreatitis was first manifested and identified over three decades after service separation. The veteran has submitted a statement by Dr. Kearney, dated in September 1995, who related that he had a history of chronic pancreatitis and has had recurrent episodes of abdominal pain related to this disorder. Dr. Kearney stated that according to the details of the veteran's past history, that he has provided, it was possible that the veteran could have had an inflamed pancreas or pancreatitis related to, or at the time of, some experimental treatment he received in 1958 through the Navy. Dr. Kearney went on to say that the veteran denied any history of alcohol use or abuse, and the veteran was discharged from service in 1958 for abdominal pain, a few months after he received this therapy. At the time of the therapy, the veteran reported that he had developed hematemesis, diarrhea, abdominal pain, and that the abdominal pain had been recurrent since that time. The Board finds that Dr. Kearney is competent to render a medical opinion of the veteran's current disorder, chronic pancreatitis, since she based this diagnosis upon the findings of an abdominal CT scan. However, the Board does not find Dr. Kearney's opinion to be sufficient nexus evidence between the current diagnosis of pancreatis and the veteran's period of service. The Board finds that this opinion is too speculative because of the use of the terms "could" and "possibly" and because there is no supporting clinical data or other rationale or any supporting evidence of the record. It is clear from Dr. Kearney's statement that the doctor relied upon the veteran's reported history concerning the "experimental" testing. As discussed above, the Board determined that the veteran's statements regarding the alleged radioactive testing were not sufficient evidence that such testing occurred. There is no other evidence of record which support the veteran's allegations that such radioactive testing occurred. The Court of Appeals for Veterans Claims has previously recognized that word parsing in medical nexus cases may have created an unclear picture for ascertaining what constitutes sufficient evidence to satisfy the medical nexus requirement. What is speculative in one context might be less so in another. Suffice it to say that in this case, Dr. Kearney, as noted above, provided no clinical data or other rationale to support her opinion; nor is there anything otherwise in the record that would give it substance. Dr. Kearney's opinion sits by itself, unsupported and unexplained. In other words, her opinion is purely speculative. See Bloom v. West, 12 Vet. App. 185 (1999) 12 Vet. App. 185, 187 (1999) (by using the term "could" without supporting clinical data or other rationale, the doctor's opinion was simply too speculative in order to provide the degree of certainty required for medical nexus evidence). In light of the absence of competent medical evidence of a nexus between the current diagnosis of pancreatitis and the veteran's period of service, the veteran's claim is implausible and not well grounded. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(a). The Board notes that the veteran may render his claim well grounded by submitting competent medical evidence linking or relating the current diagnosis of pancreatitis to his period of service. Robinette v. Brown, 8 Vet. App. 69, 74 (1995). The Board finds that the RO made a diligent effort to obtain all pertinent treatment records that were identified by the veteran and has fulfilled its duty pursuant to 38 U.S.C.A. § 5103 (West 1991). ORDER Entitlement to service connection for pancreatitis is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals