Citation Nr: 0004732 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 95-25 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for enlarged heart (cardiomegaly) with diastolic left ventricular dysfunction, asymptomatic, as due to an undiagnosed illness. 2. Entitlement to service connection for aching muscles, to include myositis and chronic generalized myalgia, as due to an undiagnosed illness. 3. Entitlement to service connection for enlarged liver as due to an undiagnosed illness. 4. Entitlement to service connection for gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, peptic ulcer disease, irritable bowel syndrome, and duodenitis, as due to an undiagnosed illness. ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from January 1978 to March 1992. He had Southwest Asia service from October 18, 1990, to April 8, 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1994 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for stomach condition, enlarged liver, enlarged heart, and aching muscles. The Board remanded this claim in February 1999. The requested development has been accomplished, to the extent possible, and the case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. Enlarged heart (cardiomegaly) with diastolic left ventricular dysfunction, asymptomatic, is a result of undiagnosed illness. 2. Generalized myalgia is a result of undiagnosed illness. 3. The evidence of record does not show that the appellant has an enlarged liver. 4. The evidence of record does not show that the appellant has a gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, peptic ulcer disease, irritable bowel syndrome, and duodenitis, as a result of an undiagnosed illness. 5. There is no competent medical evidence of a nexus between gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, peptic ulcer disease, irritable bowel syndrome, and duodenitis, and service. CONCLUSIONS OF LAW 1. Enlarged heart (cardiomegaly) with diastolic left ventricular dysfunction, asymptomatic, was incurred in service. 38 U.S.C.A. §§ 1110, 1117, 5107(a) (West 1991 & Supp. 1999). 2. Chronic generalized myalgia, was incurred in service. 38 U.S.C.A. §§ 1110, 1117, 5107(a) (West 1991 & Supp. 1999). 3. Enlarged liver was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1117, 5107(a) (West 1991 & Supp. 1999). 4. The claim for service connection for gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, peptic ulcer disease, irritable bowel syndrome, and duodenitis, is not well grounded. 38 U.S.C.A. §§ 1117, 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service connection for peptic ulcer disease may be granted if manifest to a compensable degree within one year of separation from service. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In making a claim for service connection, the veteran 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). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for service connection generally requires medical evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Establishing direct service connection for a disability that was not clearly present in service 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. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Moreover, establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. at 81. The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the 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. Grottveit, 5 Vet. App. at 93. The Secretary of VA may pay compensation to a Persian Gulf veteran suffering from a chronic illness or combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more before December 31, 2001 following such service. See 38 U.S.C.A. § 1117 (West 1991 & Supp. 1999); 38 C.F.R. § 3.317 (1999). Additionally, the disability cannot be attributed by history, physical examination, and laboratory tests to any known clinical diagnosis. See id. Service medical records reveal that in June 1980, the appellant complained of stomach pain and vomiting all day. He reported that he had had a watery bowel movement after having eaten a ham and cheese sandwich and had vomited. Upon physical examination, the examiner stated that the appellant had normative bowel sounds with four quadrant tenderness to palpation. There was no rebound and no rigidity. The diagnosis was viral gastroenteritis. In June 1984, the appellant underwent a medical examination. The examiner noted that examination of the heart was abnormal and stated that the appellant had an "[a]pparent Grade I/VI systolic ejection [murmur]." In May 1986, the appellant reported substernal and anterior left side chest pain, which radiated down his left arm and left thigh and then would radiate back to his chest. The appellant reported that it had occurred over the last one and one-half months. He stated that it was not related to exertion. He reported having had seen a heart doctor. The examiner stated that the appellant showed no signs of discomfort. His pulse was strong and then weak. In April 1987, the appellant reported chest pains for the last 24 hours. He stated that he had not tried any new exercises and that he had had no injury to the left side. The examiner noted that there was a small amount of tenderness on the left upper arm and around the chest on the left side and tenderness to the pectoralis. The assessment was pectoralis soreness. In July 1990, examination of the appellant's heart, abdomen and viscera, endocrine system, and neurologic system were normal. The appellant underwent a Persian Gulf examination in January 1993. The appellant reported that he returned from the Persian Gulf in April 1991 and that he was well until August 1992, when he started experiencing aching muscles and heartburn. Examination of the vascular system was within normal limits. Impulse and palpation of the heart was normal. He had a sinus rhythm and no murmur. The abdominal wall was normal and there was no distention. He had mild periumbilical tenderness. His kidney was not palpated. His bowel sounds were good. He was given diagnoses of nonspecific myalgia and gastroenteritis. Laboratory tests revealed that the serum glutamic oxaloacetic transaminase (SGOT) was 37 U/L (reference range was 5 - 40 U/L) and lactic dehydrogenase (LDH) was 507 U/L (reference range was 313 - 618 U/L). A December 1992 VA outpatient treatment report revealed that the appellant complained of aching muscles. The assessment was myositis. In March 1993, the appellant underwent an upper gastrointestinal series, which was normal. The diagnosis was "Peptic ulcer-not found." A March 1993 VA abdominal sonogram showed an enlarged liver. An April 1993 CT scan of the abdomen showed a normal-sized liver. In April 1993, the appellant complained of intermittent fleeting chest pain in left parasternal area. Examination of the heart revealed regular rhythm and rate and no murmur and no third heart sound. The chest wall was not tender. The VA examiner stated that an EKG done at that time showed a sinus "brady," but was otherwise normal. The assessment was chest pain, nonspecific and cardiomegaly on chest x-ray. In June 1993, the appellant's abdomen was reported as soft with bowel sounds present. The diagnosis was gastritis. An August 1993 chest x-ray showed a moderately to markedly enlarged heart. In October 1993, the appellant was given a diagnosis of peptic ulcer disease. The appellant underwent VA examinations in March 1994. The appellant reported abdominal discomfort, nausea, and vomiting occasionally after eating meals. The appellant reported that the pain would occur in the epigastric region of the abdomen. The degree of pain was sharp. Food intolerance, anorexia, malaise, weight loss, and generalized weakness were negative. The diagnoses were chronic gastritis and enlarged liver, examined for, not found. The appellant reported intermittent fleeting anterior chest pains since a few years ago. He reported no dyspnea, palpitations, or syncope. Upon physical examination, the VA examiner stated that the appellant had no jugular venous distention. The heart had regular rhythm and no murmur. The chest wall was not tender. Abdomen was negative. The VA examiner noted that the electrocardiogram was within normal limits and that there was cardiomegaly and otherwise normal. The diagnosis was enlarged heart (cardiomegaly) with diastolic left ventricular dysfunction, asymptomatic. Tissue loss comparison, muscles penetrated, scar formation, adhesions, damage to tendons, damage to bones, evidence of pain, and evidence of muscle hernia were negative. The VA examiner stated that strength was normal. The diagnosis was chronic generalized myalgia. The appellant submitted lay statements from family and friends in October 1996. A fellow serviceman stated that he was with the appellant from March 1991 to March 1992 and that the appellant complained of stomach pains and sore muscles and that the appellant was absent from physical training every other day. The appellant's sister stated that since the appellant returned home from the Persian Gulf that his digestive system was not functioning properly. A letter from a former co-worker stated that the appellant complained to him about stomach pains and sore muscles. A letter from a friend stated that she had known the appellant since 1989 and that upon returning from the military that the appellant had been unable to hold food in his stomach. An October 1996 private medical record from Dr. Graham Weatherstone revealed that the appellant complained of long- standing history of intermittent epigastric pains, which he noted did not seem to be associated with eating. Upon physical examination, Dr. Weatherstone stated that the appellant's heart revealed regular rhythm and rate without murmurs, rubs, or gallops. His abdomen was reported as obese and soft with normal bowel sounds. It was nontender and there were no masses. The impression was possible peptic ulcer disease. The appellant had an esophagogastroduodenoscopy done, which revealed gastroesophageal reflux disease and duodenitis. In May 1997, the appellant reported lower abdominal cramping. His abdomen was soft and nontender. There was no masses felt. A colonoscopy was done and Dr. Weatherstone stated that he believed that the appellant's cramping and bloating was secondary to colonic spasm. In June 1997, Dr. Weatherstone noted that the appellant was feeling much better and that upon further questioning, he felt that the appellant was lactose intolerant. In September 1997, the appellant reported that the abdominal bloating was better. The appellant underwent a VA examination in December 1996. Examination of the appellant's cardiovascular system revealed regular sinus rhythm with no murmur. He reported epigastric pain and abdominal cramps. The VA examiner stated, "He doesn't have an ulcer . . . ." The appellant reported that he got help from antacids. He stated that he had intermittent diarrhea and constipation. The appellant stated that his arms and thighs were sore all the time. The VA examiner stated that the appellant's arms and thighs felt like the appellant had been lifting weights. The VA examiner stated that the appellant's muscles were not atrophied or tender and that strength was adequate. The diagnoses were irritable bowel syndrome and sore muscles-self reported. The appellant underwent a VA examination in February 1999. The VA examiner noted that he had reviewed the appellant's claims file. The appellant reported that he had been diagnosed with duodenitis and reflux esophagitis and that he was under the care of a gastroenterologist. He further reported that he started getting aching muscles in 1993 and that the pain could happen spontaneously. He stated that he had been diagnosed with an enlarged heart and enlarged liver in 1993. Examination of the appellant's heart revealed no murmurs. The VA examiner stated that there was cardiomegaly. Examination of the appellant's stomach was soft and nontender. The liver was not palpable. Examination of the upper extremities revealed shoulder flexion to be 180 degrees, abduction to be 90 degrees, and internal and external rotation to be 90 degrees bilaterally. There was no swelling or tenderness of the upper extremities or the lower extremity muscles. Both hips flexed to 120 degrees, and abduction was 30 degrees and extension was 15 degrees. An electrocardiogram revealed sinus bradycardia. Chest x-ray showed mild cardiomegaly. The diagnoses entered were mild cardiomegaly with diastolic left ventricular dysfunction; sinus bradycardia by electrocardiogram; irritable bowel syndrome; chronic gastritis; peptic ulcer disease; chronic generalized myalgia, not active: and enlarged liver, not found. The VA examiner noted that the appellant had undergone an extensive work-up by his private gastroenterologist and that the reports were in the appellant's claims file. The VA examiner stated that the appellant did not be referred to a specialist and that no further work-up was necessary. I. Enlarged heart (cardiomegaly) The Board notes that it views the issue of well-groundedness in a vacuum. When determining whether a claim is well grounded, the evidence submitted in support of the claim must be accepted as true; however, once well-groundedness is established, the weight and credibility of the evidence must be assessed. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). The evidence establishes that the appellant has cardiomegaly, which has not been attributed to a known diagnosis. The Board finds that such finding on its face is sufficient to establish a well-grounded claim for service connection for enlarged heart (cardiomegaly) with diastolic left ventricular dysfunction, asymptomatic, as due to an undiagnosed illness. 38 U.S.C.A. § 5107(a). However, there is another standard that must be addressed; the benefit of the doubt. When all the evidence is assembled, the Secretary, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In reaching the merits determination, truthfulness and credibility are no longer assumed. After having reviewed the evidence of record, the Board finds that the evidence supports the claim for enlarged heart (cardiomegaly) with diastolic left ventricular dysfunction, asymptomatic. Cardiomegaly was shown to a degree of 10 percent or more in 1993. See 38 C.F.R. Part 4, Diagnostic Code 7007 (1999); see also 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Additionally, the diagnosis of such has not been attributed by history, physical examination, or laboratory tests to any known clinical diagnosis. See id. The Board finds that the appellant has met the requirements for the grant of service connection for enlarged heart (cardiomegaly) with diastolic left ventricular dysfunction, asymptomatic, as being due to an undiagnosed illness. See id. II. Aching muscles The Board notes that it views the issue of well-groundedness in a vacuum. When determining whether a claim is well grounded, the evidence submitted in support of the claim must be accepted as true; however, once well-groundedness is established, the weight and credibility of the evidence must be assessed. Robinette, 8 Vet. App. at 75-76. The evidence establishes that the appellant has aching muscles, which has not been attributed to a known diagnosis. The Board finds that such finding on its face is sufficient to establish a well-grounded claim for service connection for aching muscles, to include myositis and chronic generalized myalgia, as due to an undiagnosed illness. 38 U.S.C.A. § 5107(a). After having reviewed the evidence of record, the Board finds that the evidence supports the claim for chronic generalized myalgia. The appellant's reporting of his symptoms and the examiners's findings that the appellant has aching muscles, which has been diagnosed as myositis and myalgia, have been shown to a degree of 10 percent or more in 1993. See 38 C.F.R. Part 4, Diagnostic Code 5021; see also 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Additionally, the diagnosis of such has not been attributed by history, physical examination, or laboratory tests to any known clinical diagnosis. See id. The Board finds that the appellant has met the requirements for the grant of service connection for generalized myalgia, as being due to an undiagnosed illness. See id. The Board notes that the record reflects that myositis has been diagnosed on occasion. Myositis is a recognized diagnosis and is listed as a service-connectable disorder in the schedule for rating disabilities. See 38 C.F.R. Part 4, Diagnostic Code 5021 Regardless, although myositis was diagnosed, the examiners have never supported the diagnosis with objective evidence. At this time, the preponderance of the evidence establishes that he has myalgia rather than myositis. If the appellant did have myositis, service connection would be denied because it is not an undiagnosed illness and has not otherwise been attributed to service by a competent authority. III. Enlarged liver The Board notes that it views the issue of well-groundedness in a vacuum. When determining whether a claim is well grounded, the evidence submitted in support of the claim must be accepted as true; however, once well-groundedness is established, the weight and credibility of the evidence must be assessed. Robinette, 8 Vet. App. at 75-76. A March 1993 abdominal sonogram showed an enlarged liver. The Board finds that such results on its face without any medical professional attributing to a known diagnosis is sufficient to establish a well-grounded claim for service connection for enlarged liver as due to an undiagnosed illness. 38 U.S.C.A. § 5107(a). However, there is another standard that must be addressed; the benefit of the doubt. When all the evidence is assembled, the Secretary, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In reaching the merits determination, truthfulness and credibility are no longer assumed. After having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding of an enlarged liver. The evidence in support of a finding is a March 1993 VA abdominal sonogram, which showed an enlarged liver. However, this is the only piece of evidence which revealed such a finding. In an April 1993 CT scan of the abdomen, a normal-sized liver was shown. Additionally, the appellant underwent a VA examination in February 1999. The VA examiner stated that examination of the appellant's abdomen did not reveal that the liver was palpable. He entered a finding that an enlarged liver was not shown. The Board finds that the April 1993 CT scan of the abdomen and the clinical finding in the February 1999 VA examination report, which reveal that the liver was not enlarged, outweigh the March 1993 sonogram that revealed an enlarged liver. In the February 1999 examination report, the VA examiner stated that he had reviewed the appellant's claims file. He was aware of the 1993 finding of an enlarged liver. He examined the appellant's abdomen and found that the liver was not palpable and determined that it was not enlarged. The Board finds that the April 1993 CT scan and the February 1999 VA examination report are more probative than the March 1993 abdominal sonogram in that the finding of a normal-sized liver in the CT scan was substantiated by clinical findings. No medical professional has diagnosed an enlarged liver based upon clinical examination. When the case was previously before the Board, it determined that there was a conflict in the record and remanded the claim in order to resolve the conflict. The Board has concluded that a medical professional who has had an opportunity to review the claims file and examine the appellant is in the best position to establish whether there is an enlarged liver. The Board has determined that the preponderance of the evidence is against the appellant's claim for service connection for enlarged liver. Although there was an abdominal sonogram that revealed an enlarged liver, the United States Court of Appeals for Veterans Claims has recognized that the Board is not compelled to accept medical opinions; rather, if the Board reaches a contrary conclusion, it must state its reasons and bases and be able to point to a medical opinion other than the Board's own, unsubstantiated opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board has based its determination on the April 1993 CT scan of the abdomen and the clinical findings in the February 1999 examination report which revealed that the liver was not enlarged. Although the appellant has alleged that he has an enlarged liver related to his service in Persian Gulf, the appellant is not competent to make a such a diagnosis, as that requires a medical opinion. Espiritu, 2 Vet. App. at 494; see also Layno, 6 Vet. App. at 470. IV. Gastrointestinal disorder After having reviewed the evidence of record, the Board finds that the claim for service connection for gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, peptic ulcer disease, irritable bowel syndrome, and duodenitis, is not well grounded. See Caluza, supra. The appellant's gastrointestinal disorder has been attributed to known clinical diagnoses of chronic gastritis, gastroesophageal reflux disease, peptic ulcer disease, irritable bowel syndrome, and duodenitis. See 38 C.F.R. § 3.317(a). Although the appellant was given a diagnosis of viral gastroenteritis in service, no competent medical professional has related the current diagnoses of chronic gastritis, gastroesophageal reflux disease, peptic ulcer disease, irritable bowel syndrome, and duodenitis to the viral gastroenteritis to the appellant's service or any disease or injury in service nor has a medical professional attributed peptic ulcer disease to the one-year presumption period following the appellant's service. The appellant and some of his friends and family have alleged that that his gastrointestinal disorder is due to his exposure to Persian Gulf or have related it to his service; however, they are lay persons and their opinions are not competent to provide the necessary nexus evidence. See Layno, 6 Vet. App. at 470; Espiritu, 2 Vet. App. at 494. Therefore, there is no competent evidence of a nexus between the current diagnoses and service and the claim is not well grounded. See Caluza, supra. V. Section 1154 Since the appellant served during a period of war, the Board must consider the potential applicability of 38 U.S.C.A. § 1154 (West 1991). Initially, the Board notes that the appellant did not claim, and the evidence does not establish, that the gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, and duodenitis; enlarged heart (cardiomegaly) with diastolic left ventricular dysfunction, asymptomatic; aching muscles, to include myositis and chronic generalized myalgia; and enlarged liver arose or were aggravated during combat. Therefore, section 1154 is not applicable in this case. If the appellant had alleged that that such disabilities had arisen under combat situations, the provisions of section 1154 would still not result in a grant of service connection for gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, and duodenitis and aching muscles, to include myositis and chronic generalized myalgia, as the appellant has not brought forth the necessary nexus evidence between those diagnoses and service. See Beausoleil v. Brown, 8 Vet. App. 459, 464 (citing Caluza (the questions of either current disability or nexus to service generally require competent medical evidence)). Thus, section 1154 would not assist the appellant in the claims for service connection for gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, and duodenitis and aching muscles, to include myositis and chronic generalized myalgia. VI. General duty Although the VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claims when they are determined to be not well grounded, it may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette, supra. Here, the RO fulfilled its obligation under section 5103(a) in the issuance of a statement of the case in May 1995 and the issuance of supplemental statements of the case in October 1997 and January 1998. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration); Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's duty is just what it states, a duty to assist, not a duty to prove a claim). ORDER Service connection for enlarged heart (cardiomegaly) and generalized myalgia, as due to an undiagnosed illness, is granted. Service connection for enlarged liver and gastrointestinal disorder, to include chronic gastritis, gastroesophageal reflux disease, peptic ulcer disease, irritable bowel syndrome, and duodenitis is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals