Citation Nr: 0006892 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 96-09 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include a hiatal hernia, on a direct basis and secondary to a nervous disorder. REPRESENTATION Appellant represented by: Michael J. Hansen, Attorney ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from April 1969 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In June 1999, the Board remanded this issue for further development. The RO, after readjudicating the claim based on the requested development, continued its denial of the veteran's service connection claim. The case has returned to the Board for appellate review. FINDING OF FACT The claim of entitlement to service connection for a gastrointestinal disorder, to include a hiatal hernia, either on a direct basis or secondary to a nervous disorder, is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for a gastrointestinal disorder, to include a hiatal hernia, either on a direct basis or secondary to a nervous disorder, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking service connection for a gastrointestinal disorder, to include a hiatal hernia, either on a direct basis or secondary to a nervous disorder. The legal question to be answered initially is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him with any further development. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. 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); 38 C.F.R. § 3.303 (1999). Secondary service connection is awarded when a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). "Additional disability resulting from the aggravation of a non-service- connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310(a)." Libertine v. Brown, 9 Vet. App. 521, 522 (1996). A claim for secondary service connection must be well grounded under 38 U.S.C.A. § 5107(a). See Buckley v. West, 12 Vet. App. 76, 84 (1998). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). The service medical records are negative for a gastrointestinal disorder, to include a hiatal hernia. The January 1973 separation examination is negative for complaints or findings of a gastrointestinal disorder. While post-service private and VA medical records show that the veteran currently has a gastrointestinal disorder, variously diagnosed as esophagitis, a hiatal hernia, and gastroesophageal reflux disease; there is no competent evidence linking any gastrointestinal disorder to service. Furthermore, there is no competent evidence of record linking any gastrointestinal disorder to his service-connected nervous disorder. As noted above, evidence of a current disability that is either medically or scientifically linked to service or to a service connected disorder is essential in establishing a well-grounded claim. Without competent evidence of a gastrointestinal disorder, to include a hiatal hernia, that is either linked to service on a direct basis or secondary to a nervous condition, this claim is not well grounded. Epps. With respect to the veteran's own statements as to the etiology or cause of his disorder the Board notes that, "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 v. Derwinski, 2 Vet. App. 492, 494 (1992). Causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since the appellant has not submitted a medical opinion or other competent evidence to support his claim that his gastrointestinal disorder, to include a hiatal hernia, is in anyway related to his period of service, or secondary to his nervous condition, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107. Hence, the benefit sought on appeal is denied. Although the Board has disposed of the foregoing claim on a ground different from that of the RO, that is, whether the veteran's claim is well grounded rather than whether he is entitled to prevail on the merits he has not been prejudiced by the Board's decision. In assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). As the foregoing explains the need for competent evidence of a current disability which is linked by either competent evidence to service, or a service-connected disability, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). ORDER Service connection for a gastrointestinal disorder, to include a hiatal hernia, either on a direct basis or as secondary to a nervous disorder, is denied. DEREK R. BROWN Member, Board of Veterans' Appeals