Citation Nr: 0001982 Decision Date: 01/25/00 Archive Date: 02/02/00 DOCKET NO. 96-24 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for a dental disorder for VA treatment purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. M. Panarella, Associate Counsel INTRODUCTION The veteran served on active duty from February 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from the January 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). FINDINGS OF FACT 1. There is no competent medical evidence linking a stomach disorder with the veteran's period of active service. 2. There is no competent medical evidence linking a skin disorder with the veteran's period of active service. 3. There is no competent medical evidence linking a dental condition with the veteran's period of active service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a stomach disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a skin disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for a dental disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A veteran is entitled to service connection for a disability resulting from disease or injury incurred in or aggravated in the line of duty while in the active military, naval, or air service. See 38 U.S.C.A. §1110 (West 1991); 38 C.F.R. § 3.303 (1999). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b) (1999). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (1999). In addition, 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) (1999). However, the veteran must first show that his claim for service connection is well grounded. A well-grounded claim is one that is plausible, capable of substantiation, or meritorious on its own. See 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive it must be accompanied by supporting evidence. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well-grounded claim there is no duty to assist the veteran in developing the facts pertinent to his claim and the claim must fail. See Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). To establish that a claim for service connection is well grounded, the veteran must demonstrate the existence of a current disability, the incurrence or aggravation of a disease or injury in service, and a nexus between the current disability and the in-service injury. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to prove service incurrence. See Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). In addition, the nexus requirement may be satisfied by a presumption that certain disorders manifested themselves to a degree of ten percent within one year of discharge from service. See 38 U.S.C.A. § 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999); Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which 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 that that same condition currently exists. This evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). I. Stomach Disorder The veteran's service medical records show that he had severe diarrhea in June 1968 and that he complained of stomach cramps, as well as a sore throat and headache, in July 1969. The remainder of the service medical records, including the October 1969 separation examination, contained no complaints, findings, or diagnoses related to the stomach. Private medical records of Barry Free, M.D., reflect that the veteran was assessed with a possible nervous stomach in April 1973 due to complaints of stomach cramps, headaches, nausea, and insomnia. Medical records from Maple City Practice show that the veteran was seen in May 1984 with complaints of belching and gagging for the past 2 to 3 years, with a negative prior medical history. Physical examination found minimal tenderness and an upper gastrointestinal series was recommended to rule out hiatus hernia, esophagitis, ulcer, or gallbladder disease. The veteran was prescribed Zantac. The veteran returned in October 1984 with complaints of chest discomfort and was assessed with esophagitis. In May 1985 and March 1990, the veteran was assessed with viral gastroenteritis due to symptoms including stomach pain and diarrhea. In January 1994, he complained of stomach pain, cramps, and bowel changes after recently returning from Mexico. Active bowel sounds were the only objective finding and he was assessed with abdominal pain. During a VA examination in June 1995, the veteran complained of episodes of epigastric fullness with pain and belching since the late 1970's. The physical examination was completely negative and the upper gastrointestinal series was within normal limits. The veteran was diagnosed with a hiatal hernia. The veteran appeared at a hearing before the Board October 1999. He testified that he received treatment for a stomach disability during active service in Germany and Vietnam. He reported the most severe problems as occurring in Vietnam and stated that he had difficulty adjusting to the food. Medical treatment was provided in field hospitals and he estimated that he sought treatment more than one dozen times. His symptoms included indigestion, diarrhea, and pain and bloating of the stomach. These same symptoms continued after service, and he has been diagnosed with a nervous stomach, an inflamed esophagus, and an ulcer. He received treatment six months after service but those records are unavailable. Based on this evidence, the Board finds that the record has failed to demonstrate any medical evidence illustrating a nexus between the veteran's present stomach disability and his period of active service. The Board observes that the veteran's present stomach complaints have been diagnosed as different disabilities. However, none of these diagnoses have been related to the veteran's active duty. See Hodges v. West, No. 98-1275 (U.S. Vet. App. Jan. 12, 2000). The Board cannot rely on the veteran's own statements because evidence of a medical nexus cannot be established by lay testimony. See Brewer v. West, 11 Vet.App. 228, 234 (1998). Further, the Board has considered the application of 38 C.F.R. § 3.303(b) (1999) and the holding of Savage in making its determination. However, the complaints of stomach pain and diarrhea in service were not shown to be chronic nor has the medical evidence of record shown continuity of symptomatology following service. The evidence of record suggests that the veteran's present symptomatology did not begin until many years after service. Inasmuch as the record contains no medical opinion linking the veteran's current complaints with his period of active service, the claim must be denied as not well grounded. II. Skin Disorder The veteran's service medical records, including the separation examination of October 1969, contain no complaints, findings, or diagnoses related to the skin. Records from Maple City Practice show that the veteran was prescribed cream for dyshidriotic eczema due to an irritation over the knuckles of his right hand in February 1987. In May 1992, the veteran had a benign dermatofibroma removed from his right lower leg. In May 1995, he was assessed with eczematous dermatitis of the hands. During a VA skin examination in June 1995, the veteran stated that, during active service, he had several nonspecific leg rashes in Germany and an episode of sun poisoning in Vietnam. He now reported chronic problems with his hands, feet, scalp, and face. His hands and feet occasionally broke out with a papillovesicular eruption, and there was a significant pruritic aspect to the rash in some areas. The scalp and face rash was intermittent, with a fair amount of dandruff and pruritus of the scalp. His face also had blotches of redness with some scaling. Upon physical examination, there was very minimal scale in scattered areas of the scalp, mild scaling in the external ear canals, and mild erythema and minimal scale of the nasolabial fold. Focal patches of desquamating scale with mild erythema on the medial aspect of the feet were present. The KOH examination of the scale showed positive hyphal elements, indicating a component of tinea pedis. The veteran was diagnosed with dyshidriotic eczema and seborrheic dermatitis. The examiner commented that the veteran's history of sun poisoning was consistent with polymorphous light eruption but that there was no present evidence of that condition. During the October 1999 hearing before the Board, the veteran testified that he received treatment for dry skin, skin rashes, and athlete's foot in service. He also had an episode of severe sunburn in Vietnam. The athlete's foot was a continual problem until he received the proper medication in approximately 1996 or 1997. He now continually used Lamisil; however, the condition still occasionally flared up. He claimed that his doctor told him that it was possible that Vietnam was the cause. At the present, his hands and wrists occasionally became dry and broke out in sores if he did not use medication. His hands, legs, and face become very dry during the winter. He has had flare-ups and remissions of the skin conditions over the years. No private physicians have related his skin conditions to service. He said that the sunburn healed in service but that he had skin poisoning after service and now he has to limit sun exposure. Based upon a review of the above evidence, the Board finds that the record has failed to provide any medical evidence illustrating a nexus between the veteran's any present skin disorder and his period of active service. The Board observes that the veteran's service medical records contain no reference to any skin disorders. However, even were the Board to accept the veteran's statements concerning his incidents of sunburn, athlete's foot, and skin rashes in service, which the Board does for purposes of determining whether the claim is well grounded, the claim would still fail for lack of a medical nexus. The Board cannot rely on the veteran's own statements because evidence of a medical nexus cannot be established by lay testimony. See Brewer v. West, 11 Vet.App. 228, 234 (1998). The available medical evidence does not show treatment of a skin disorder until almost twenty years following service. No physician of record has related the present disorders to the veteran's service in Vietnam and the VA examiner specifically found that there were no residuals of sunburn. Evidence of a well- grounded claim not having been submitted, the benefit sought on appeal must be denied. III. Dental Disorder The veteran's service medical records include a complaint of tenderness in the area of tooth number 17 in June 1967. Dental records otherwise indicate routine treatment of the teeth. In a May 1995 letter from Paul D. David, D.D.S., he stated that he provided the veteran with an initial examination, prophylaxis, and bitewing x-rays in March 1978. Records from Dennis R. Hayes, D.D.S., show that, in October 1980, the veteran related that he had gum problems when he was 16 years old and again during active service in Germany. He complained of his gums bleeding when he brushed his teeth and underwent subgingival scale and curettage. A statement from the office of Roger Miller, D.D.S., related that the veteran was seen in July 1982 for an amalgam restoration on tooth number three. Records from Maple City Practice in April 1991 reveal that the veteran's gums were inflamed and reddened and he was diagnosed with gingivitis. A note from Mark Mihalo, D.D.S., stated that he only provided the veteran with emergency treatment for a toothache in October 1991. Medical records from 1992 to 1996 of Daniel Fridh, M.D., disclose that the veteran was followed for bleeding gums and that he received regular perio maintenance. During a VA dental examination in August 1995, the veteran reported dental and gum abscesses during active service and a possible tooth extraction. He was presently being followed on a frequent periodontal maintenance recall. Physical examination discovered missing teeth numbers 1, 2, 16, 18, 19, and 32. Restorations were present on teeth numbers 3, 4, 9, 13, 14, 15, 30, and 31, with a fixed bridge between teeth 17 and 20. There were likely amalgam tattoos in the area of teeth 4, 29, and 31 and there was generalized horizontal loss in alveolar bone height. During his testimony before the Board, the veteran stated that he first had bleeding of the gums in Germany but that he was not diagnosed with periodontal disease until after service. The evidence of record clearly establishes that the veteran currently has a dental disorder manifested by bleeding of the gums. However, the service medical records contain no related findings or diagnoses and no physician of record has related the veteran's present disability to his period of active service. In fact, the first diagnosis of record was made more than twenty years before service. As aforementioned, as a layperson, the veteran cannot provide a medical nexus between his current disability and his period of active service. See Brewer v. West, 11 Vet.App. 228, 234 (1998). Due to the lack of competent medical evidence linking the veteran's current dental disorder with his period of active service, the claim must be denied as not well grounded. IV. Conclusion The veteran has failed to meet his initial burden of submitting evidence of a well-grounded claim for service connection and so places the VA under no duty to assist him in developing the facts pertinent to that claim. See Epps, 126 F.2d at 1468. As the Board is not aware of the existence of additional evidence that might well ground the veteran's claim, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a) (1991). See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views this discussion as sufficient to inform the veteran of the elements necessary to well ground his claim, and as an explanation as to why his current attempt fails. ORDER Evidence of a well-grounded claim not having been submitted, service connection for a stomach disorder is denied. Evidence of a well-grounded claim not having been submitted, service connection for a skin disorder is denied. Evidence of a well-grounded claim not having been submitted, service connection for a dental disorder, for the purpose of VA treatment, is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals