BVA9505841 DOCKET NO. 93-15 139 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased (compensable) evaluation for non- displaced fracture of the fifth metatarsal of the right foot. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for a disability of the lungs. 4. Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from March 1953 to March 1955. This appeal arises from a February 1992 rating decision of the Department of Veterans Affairs (VA), Houston, Texas, Regional Office (RO). In that decision, the RO granted service connection for a non-displaced fracture of the fifth metatarsal of the right foot and assigned a noncompensable evaluation for this disability. The RO denied the claim of entitlement to service connection for sinusitis, a disability of the lungs, and a gastrointestinal disorder. The threshold question is whether the veteran has presented evidence of a well-grounded claim. The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is one that is plausible, that is meritorious on its own or capable of substantiation. If a claimant has not presented a well- grounded claim, his or her appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet.App. 136 (1994); Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990). Under the law, a claim for benefits need not be conclusive, but it must be accompanied by evidence. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The assertions of a lay party on matters of medical causation or date of inception of a disease or disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet.App. 211 (1993). The assembled records for review include a statement from the veteran indicating that he was treated for a gastrointestinal disorder soon after discharge from service. He stated that after he was released from active duty in 1955, he was followed by a private physician in Nashville, Tennessee, Dr. William Sheradon, for several years. He also indicated that he received treatment thereafter from Drs. Saul and Marvin "Rosenbum." It appears from the record that prior to forwarding a VA request for information, the RO determined that a Dr. Saul "Rosenthal" has ceased practice in Nashville, moved or died and that there was no record of his successor. It does not appear that an attempt has been made to clarify this information or to procure treatment records of the other listed health care providers. Such records may render the appellant's claim of entitlement to service connection for a gastrointestinal disorder well grounded inasmuch as the claim may then be "capable of substantiation." The VA has an obligation under 38 U.S.C.A. §§ 5103(a), 7722 (West 1991) to advise the appellant of the evidence necessary to complete his or her application for benefits. In this case, the appellant is hereby notified that preliminary review indicates that the "evidence necessary to complete the application" is competent evidence establishing that a gastrointestinal disorder was incurred in military service. Once the additional records development as outlined above is completed, the record must again be reviewed to determine whether the claim of entitlement to service connection for a gastrointestinal disorder is ultimately well grounded. Accordingly, the appellant is advised that, unless the development directed herein coincidentally provides evidence on the theory that a gastrointestinal disorder was incurred in military service, he remains under the obligation to provide such evidence. In written argument submitted to the Board of Veterans' Appeals (Board) dated in February 1994, the veteran's representative noted that the veteran has never been afforded a VA examination for rating purposes of his service-connected non-displaced fracture of the fifth metatarsal of the right foot. He has requested that this case be remanded to the RO in order to afford the veteran such an examination. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1993). The Court has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The Board has reviewed the record on appeal, and has determined that the veteran should be afforded a VA examination for purposes of determining the nature and extent of the service-connected disability at issue in this case. The Board has also carefully reviewed the record on appeal with respect to the issue of service connection for sinusitis. Additional development is also warranted in this regard. The Board notes that the veteran's service medical records indicate that the veteran received treatment for sinusitis in service in 1954 and these records contain no indication that this disability was noted on physical examination prior to that time despite the RO finding that this disorder preexisted service. The Board observes further that the record on appeal includes a quadrennial examination dated in April 1959 and apparently conducted in association with the veteran's service in the U.S. Army Reserves in which a reference was made to the 1954 treatment for sinus trouble and in which mild recurrent sinusitis was reported. In light of the absence of entries relating to sinusitis prior to 1954, and treatment for sinusitis in service, the Board has also determined that the veteran should be afforded a VA examination to determine whether any related current disability exists. Moreover, as noted above, it appears that the veteran also served in the U.S. Army Reserves; the RO should ensure that all related active duty for training has been verified and ensure that all available related service medical records are associated with the records assembled for appellate review. In view of the foregoing, and in order to fairly and fully adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request from the appropriate source verification of all of the veteran's periods of active duty for training in the U.S. Army Reserves. The RO should procure all available service medical records not already associated with the record on appeal. 2. The RO should request the veteran to identify all sources of medical treatment received for a gastrointestinal disability since discharge from service, and provide information regarding the dates of that treatment as well as furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested, to include the complete records of Dr. William Sheradon, and Drs. Saul and Marvin "Rosenbum," or "Rosenthal." All records obtained should be added to the claims folder. 3. The RO should schedule the veteran for a general medical examination to determine the current residuals of a non-displaced fracture of the fifth metatarsal of the right foot as well as a special Ear, Nose, and Throat examination to assess the nature, severity, and manifestations of sinusitis that may be present. The examinations should be conducted in accordance with the guidelines provided in the Physician's Guide for Disability Evaluation Examinations. The claims folder should be made available to the examiners prior to the examinations. All indicated tests should be conducted and any additional indicated special examinations should be accomplished. The report should summarize all significant positive findings, with emphasis upon the limitation of activity, to include interference with employability, and any functional loss due to pain, imposed by the disorders. 4. Thereafter, the RO should readjudicate the veteran's claim, initially making a specific determination, based upon the complete record, with respect to whether the veteran has presented a well-grounded claim with respect to each issue. Based on this determination, and if appropriate, the RO should accomplish any further indicated development. The increased rating evaluation should reflect consideration of the applicability of 38 C.F.R. § 3.321(b)(1). If the determinations remain adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence, citation of the provisions of 38 C.F.R. § 3.321(b)(1), and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).