Citation Nr: 0002640 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 94-25 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include ulcers (hereinafter referred to as "gastrointestinal disorder"). 2. Entitlement to service connection for bilateral varicose veins. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran served on active duty from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1992 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, denied service connection for bilateral varicose veins and found that there was no new and material evidence to reopen a claim for service connection for ulcers. This case was previously before the Board in August 1996, at which time the Board recharacterized the latter issue as entitlement to service connection for ulcers, and remanded the case to the RO for further development. The additional development having been completed, the case is again before the Board for appellate review. The Board also notes that, through his accredited representative's August 1999 statement and November 1999 informal hearing presentation, the veteran listed as an issue entitlement to service connection for post-traumatic stress disorder (PTSD). Entitlement to service connection for PTSD was denied by a March 1998 RO rating decision. Although a timely notice of disagreement was filed in April 1998, a timely substantive appeal following the RO's statement of the case was not filed, as explained in a September 1999 RO letter to the veteran. Therefore, the issue of entitlement to service connection for PTSD is not before the Board at this time. 38 C.F.R. §§ 20.202, 20.302 (1999). FINDINGS OF FACT 1. The veteran's gastrointestinal disorder was not manifested during the veteran's service or for many years thereafter, or has not otherwise been shown to be related to the veteran's period of active military service. 2. There is no medical evidence of a nexus or link between the veteran's current bilateral varicose veins and service. CONCLUSIONS OF LAW 1. The veteran's gastrointestinal disorder was not incurred during his active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1999). 2. The veteran's claim of entitlement to service connection for bilateral varicose veins is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law provides that a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated while in service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Where a veteran who served for ninety (90) days or more during a period of war (or during peacetime service after December 31, 1946), develops a chronic condition, such as peptic ulcers, to a degree of 10 percent or more within one year from separation from service, such disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1999). 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. 38 C.F.R. § 3.303(d). However, the threshold question that must be answered in this case is whether the veteran has presented well-grounded claims for service connection. A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, 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); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993). To establish that a claim for service connection is well grounded, a veteran must present a medical diagnosis of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 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, 1467-68 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, the United States Court of Appeals for Veterans Claims (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, 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, 10 Vet. App. at 498. I. Service connection for gastrointestinal disorder In his written statements and August 1993 RO hearing testimony, the veteran contends that he incurred a gastrointestinal disorder, to include ulcers, while he was in service. The service medical records (SMRs) include treatment records dated in May 1967 and June 1967 revealing that the veteran was seen for pain, cramps, and diarrhea associated with muscle strain and an upset stomach. October 1967 treatment records show the veteran was seen for an upset stomach, accompanied by cramps and tightness. An October 1968 treatment record shows that the veteran had gastroenteritis. A report of a separation examination, also dated in October 1968, is negative for any complaints or abnormal clinical findings pertaining to a gastrointestinal disorder. The clinical evaluation of the abdomen and viscera at that time was normal. Post-service medical records begin with a June 1979 treatment record, which stated that the veteran had an upper gastrointestinal (UGI) study, which revealed reflux of barium, and an X-ray study showed duodenal ulcers. An August 1979 VA examination report noted the veteran's complaints of epigastric pain since 1976. Further VA treatment records, dated in January and February 1980, showed continued treatment for ulcers. A May 1996 VA radiology report (upper GI series) revealed the existence of an 4mm antral ulcer. A June 1996 VA treatment record revealed the veteran was suffering from diarrhea. A November 1996 VA general medical examination report stated the veteran had a history of peptic ulcer disease. A March 1997 VA examination report noted moderate tenderness in the right upper quadrant of the abdomen. A June 1998 private radiology report prepared upon referral from VA stated that the thoracic esophagus, stomach, duodenal bulb, and duodenal sweep appeared within normal limits, and there was no evidence of gastroesophageal reflux. The impression was that of an unremarkable study. A June 1998 letter from a private physician to VA, who performed an examination upon referral from VA, noted that the veteran was seen for an assessment of his gastrointestinal disability/peptic ulcer disease. The examiner noted that the veteran was a poor historian, presenting a vague description of his abdominal symptoms, and dates that did not match his medical records, which the examiner appeared to have reviewed. The veteran's medical history was summarized as follows: a duodenal ulcer in 1979; an antral ulcer in 1996; and longstanding complaints of abdominal symptoms such as intermittent nausea, abdominal pain, flatulence, vomiting, and diarrhea since 1967. At the time of examination, the veteran complained of frequent nausea, occasional vomiting, abdominal pains, and black- colored stools. A UGI study was noted to have demonstrated a normal gastrointestinal tract, with no active gastrointestinal disease. The diagnoses were history of peptic ulcer disease and H. pylori positive serology; currently, no active gastrointestinal disease demonstrated by UGI study; and severe dyspepsia refractory to daily cimetidine therapy. A February 1999 medical opinion was obtained from the private physician who prepared the aforementioned June 1998 examination report, upon referral from VA. The examiner opined that the veteran's "duodenal ulcer in 1979 is most likely due to H. Pylori infection and not due to any service incidents." With regard to the veteran's antral ulcer in 1996, because it occurred eighteen years after separation service, the examiner commented that "it is unlikely that the antral ulcer is due to any service incidents. Moreover, the UGI series done on June 17[,] 1998 demonstrated no active ulcers or gastrointestinal disease. Therefore, his current gastrointestinal symptoms are unlikely to be related to his peptic ulcer disease." The examiner also opined that the veteran suffered from "vague abdominal symptoms that are suggestive of gastroenterological reflux disease ... [that] is usually chronic and is not related to any single event. Therefore, it is doubtful that the veteran's longstanding abdominal symptoms are related to any single service-related incidents." Initially, the Board notes that as the record does not show that the veteran suffered from peptic ulcer disease to a degree of 10 percent or more within one year from separation from service, consideration for presumptive service connection for a gastrointestinal disorder is precluded. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board finds, however, that the above evidence of record is sufficient to make the veteran's claim for a gastrointestinal disease well grounded. That is, the veteran has presented a plausible claim; one which is meritorious on its own or capable of substantiation. Grivois; Murphy, supra. In analyzing the merits of the claim, however, the Board finds that service connection for a gastrointestinal disorder must be denied. This conclusion is based on the medical evidence of record, which, although acknowledging that the veteran's gastrointestinal symptoms are longstanding, also specifically stated, in the February 1999 medical opinion, that the veteran's 1979 and 1996 ulcers were unrelated to service, and that it was doubtful that other gastrointestinal symptoms were related to service. None of the other relevant medical records demonstrate a nexus between any of the veteran's gastrointestinal symptoms and his term of active service. Although the medical evidence notes that the veteran has had longstanding gastrointestinal symptomatology since service, this observation is only enough to arguably well-ground the veteran's claim pursuant to the rules of chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) and Savage. The fact of the matter is that despite the medical evidence suggesting that the veteran has had various gastrointestinal symptoms over the years, the preponderance of the evidence is against the claim that he has a current gastrointestinal disorder that either began during or as the result of some incident of service. The only medical opinion that specifically addresses the contended causal relationship clearly goes against the veteran's claim as the physician opined in February 1999 that the contended etiological link was unlikely or doubtful. As to the veteran's statements concerning such a relationship, being a layman, he is not competent to give an opinion regarding medical causation or diagnosis, and his statements on such matters do not serve to make the claim well grounded. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The preponderance of the evidence being against the veteran's claim, the benefit-of-the-doubt doctrine outlined in 38 U.S.C.A. § 5107(b) and Gilbert v. Derwinski, 1 Vet. App. 49 (1990) is not for application. Therefore, the Board finds that entitlement to service connection for a gastrointestinal disease is not established. II. Service connection for bilateral varicose veins The veteran contends, in his written statements and August 1993 RO hearing testimony, that he incurred varicose veins as a result of service. Indeed, the veteran testified specifically, at his RO hearing, that he did not develop varicose veins until 1969, within a year subsequent to his discharge from service. These contentions are supported by the July 1993 lay statement prepared by the veteran's mother. The SMRs are devoid of any indication that the veteran complained of, was diagnosed with, or treated for, varicose veins. Post-service medical records include variously dated VA treatment records for the period January 1980 to January 1996, which demonstrate that the veteran exhibited varicose veins. A November 1996 VA examination report included and assessment a history of lower extremity varicosities. A March 1997 examination report recounted the veteran's complaints of having varicose veins since 1969, with worsening symptoms ever since. Objectively, the veteran had prominent varicose veins, particularly in the right leg. The impression was varicose veins of the lower extremities. After a review of the relevant evidence contained in the claims file, the Board finds that the veteran's claim for service connection for varicose veins must be denied as not well grounded. Although the veteran does not contend that he sought treatment for varicose veins in service, he nevertheless maintains that his currently diagnosed varicose veins are due to service. With regard to this contention, the Board finds that the relevant post-service medical records, which begin in January 1980, do not provide a nexus or link between his current varicose veins and any incident, injury or disease sustained during service. Moreover, as there is no medical evidence of any varicose veins more than twenty years subsequent to his separation from active service, there is no evidence to well-ground the veteran's claim upon application of the rules of chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b) and Savage. The Board has considered the veteran's statements regarding the contended causal relationship between his varicose veins and service. However, being a layman, he is not competent to give an opinion regarding medical causation, and his statements on such matters do not serve to make the claim well grounded. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER The veteran's claim of entitlement to service connection for a gastrointestinal disease is denied. Evidence of a well-grounded claim not having been submitted, service connection for varicose veins is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals