Citation Nr: 0004827 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 97-34 136A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back condition claimed as due to undiagnosed illness. 2. Entitlement to service connection for rectal itching claimed as due to undiagnosed illness. 3. Entitlement to service connection for hair loss claimed as due to undiagnosed illness. 4. Entitlement to service connection for gastroesophageal reflux disease with duodenitis claimed as due to undiagnosed illness. 5. Entitlement to service connection for a skin condition claimed as due to undiagnosed illness. 6. Entitlement to service connection for an acquired psychiatric disorder. 7. Entitlement to an increased (compensable) rating for the service-connected blurred vision, dizziness and headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty for training from November 1985 to April 1986, on active duty from December 1990 to June 1991, on active duty for training in July 1993 which has not been verified, and on active duty for training from May 1994 to September 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision by the RO. FINDINGS OF FACT 1. The veteran served in the Southwest Asia Theater of Operations in support of Operation Desert Shield/Storm from January 13, to May 20, 1991. 2. No competent evidence has been submitted to show that the veteran currently has current disability manifested by a low back pain, rectal itching, hair loss and gastroesophageal reflux disease with duodenitis and current skin disability due to an undiagnosed illness or other disease or injury which was incurred in or aggravated by service. 3. The veteran's claim that he currently suffers from an acquired psychiatric disorder due to service is plausible. CONCLUSIONS OF LAW 1. The veteran has not presented well-grounded claims of service connection for a low back condition, rectal itching, hair loss, gastroesophageal reflux disease with duodenitis and a skin condition as due to an undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (1999). 2. The veteran has submitted evidence of a well-grounded claim of service connection for an acquired psychiatric disorder to include PTSD. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999). (The issue referable to the claim for increase is the subject of the Remand portion of this document.) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Background Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for disease or injury while on active duty for training if it is shown that the disease or injury was incurred or aggravated in the line of duty during active duty for training. 38 U.S.C.A. §§ 101(24), 106 (West 1991); 38 C.F.R. § 3.6(a) (1999). The threshold question which the Board must address in this case is whether the appellant has presented a well-grounded claim. A well-grounded claim is one which is plausible. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The veteran has the 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(a). A three- prong test is used to determine whether a claim is well grounded. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). For a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Id. A claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board notes, however, that inasmuch as the veteran is offering his own medical opinion and diagnoses, the record does not indicate that he has any professional medical expertise. See Bostain v. West, 11 Vet. App. 124, 127 (1998) ("lay testimony . . . is not competent to establish, and therefore not probative of, a medical nexus"); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993). Service Connection for a Low Back Condition, Rectal Itching, Hair Loss, Gastroesophageal Reflux Disease with Duodenitis and A skin Condition due to Undiagnosed Illness and on a Direct Basis The Board notes that Congress enacted the Persian Gulf War Veteran's Act, Title I of the Veterans Benefit Improvement Act of 1994 (P.L. 103-446), effective on November 2, 1994, codified as 38 U.S.C.A. § 1117, which authorized VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which 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 within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. To implement the Persian Gulf War Veteran's Act, VA promulgated 38 C.F.R. § 3.317 which defined qualifying Persian Gulf service. The regulation also established the presumptive period for service connection and a broad but non-exclusive list of signs or symptoms that might be representative of undiagnosed illnesses for which compensation might be paid. That presumptive period encompasses any such disability that becomes manifest to a compensable degree through December 31, 2001. 38 C.F.R. § 3.317. At present, the U.S. Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) has not ruled on what constitutes a well-grounded claim under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 for Gulf War veterans seeking compensation for certain disabilities due to undiagnosed illnesses. However, the VA General Counsel recently issued a precedential opinion on this subject. In summary, the General Counsel held that a well-grounded claim for compensation under 38 U.S.C. § 1117 (a) and 38 C.F.R. § 3.317 generally requires the submission of some evidence of these four elements: (1) active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf war; (2) the manifestation of one or more signs or symptoms of undiagnosed illness; (3) objective indications of chronic disability during the relevant period of service or to a degree of disability of 10 percent or more within the specified presumptive period; and (4) a nexus between the chronic disability and the undiagnosed illness. VAOPGCPREC 4-99 (May 3, 1999). In paragraph 15 of its precedential opinion, the General Counsel stated that . . . for purposes of establishing a well grounded claim, we conclude that a claimant ordinarily must submit some evidence indicating either that his or her illness is incapable of diagnosis or, at minimum, that physicians providing treatment or examination of the illness have not attributed it to a known diagnosis. Id. Further, precedential opinions of the VA General Counsel are binding on the Board. 38 U.S.C.A. § 7104(c). The veteran served in the Southwest Asia Theater of Operations in support of Operation Desert Shield/Storm from January 13, to May 20, 1991. However, the Board finds that the veteran has not submitted well-grounded claims of service connection for a low back condition, rectal itching, hair loss, gastroesophageal reflux disease with duodenitis and a skin condition as due to undiagnosed illness. The Board notes that VA medical examiners have attributed these conditions to known diagnoses, i.e., the low back condition was diagnosed as back strain; rectal itching was diagnosed as probable minor hemorrhoidal problem with no evidence of active disease during examination in November 1996 and history of probable pustule/abscess with complete resolution with treatment in service during basic training in the 1980's; hair loss was diagnosed as male pattern baldness; the gastrointestinal condition has been variously diagnosed as gastroesophageal reflux disease, duodenitis, probable gastritis and probable esophagitis; and the skin condition was diagnosed as tinea corporis. While the General Counsel has noted that in some circumstances the relationship between symptoms and a current disability is capable of proof by lay evidence alone, this is not such a case. The veteran has speculated that his conditions are due to an undiagnosed illness from serving during the Persian Gulf War, but the Board finds nothing in the claims file to indicate that the veteran is a medical professional who would have the expertise to provide an opinion as to the questions of medical diagnosis and causation presented in this case. Regarding service connection for hair loss and a skin condition on a direct basis, there is no competent evidence of record which would satisfy two of the prongs of the Caluza test, i.e., there is no diagnosis of an inservice hair loss and a skin condition and no expert medical opinion linking any putative disease or injury in service to any current disability. The veteran's service medical records indicate that the veteran had a perirectal abscess in February 1986. He had an attack of acute gastritis in March 1986. A VA treatment record notes that the veteran had another episode in January 1989. During active duty for training in July 1993, the veteran complained of pain across his lower back after pulling a bench section and mechanical low back pain was diagnosed. VA treatment records note that the veteran complained of low back pain in 1995 and 1996, and low back pain was diagnosed. VA medical records note that the veteran has been diagnosed with several gastrointestinal conditions from 1994 to the present. A VA outpatient treatment record in March 1998 notes that the veteran stated that he injured his back two years previously. Back strain was diagnosed. Regarding the veteran's low back condition, the Board notes that the veteran complained of low back pain during active duty for training. However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, No. 97- 1948 (U.S. Vet. App. Dec. 29, 1999). In addition, there is no competent evidence of record which would satisfy the third prong of the Caluza test, i.e., there is no expert medical opinion linking the back strain diagnosed in 1998 with the veteran's low back pain reported in service in 1993. The veteran, as a lay witness, is not competent to offer an opinion as to its relationship to service. See Espiritu, supra. Regarding the veteran's rectal itching, he did have a perirectal abscess in service, however, the examiner who performed the November 1996 VA examination stated that the condition resolved completely in service. Thus, there is no competent evidence of record which would satisfy two prongs of the Caluza test, i.e., there is no diagnosis of a current disability and no expert medical opinion linking any disease or injury in service to any putative current condition. Regarding the veteran's gastrointestinal conditions, there is no competent evidence of record which would satisfy the third prong of the Caluza test, i.e., there is no expert medical opinion linking the episode of acute gastritis in service in 1986 to any current gastrointestinal disability. The Board notes the contentions the veteran, his family and friends that the above-mentions conditions were incurred in service. Such unsupported personal assertions, however sincere, cannot form the basis of a well-grounded claim. See Moray, Espiritu, supra. Thus, the veteran's claims of service connection for a low back condition, rectal itching, hair loss, gastroesophageal reflux disease with duodenitis and a skin condition as due to an undiagnosed illness and on a direct basis are not well grounded. If a claim is not well grounded, the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet. App. 14 (1993). As a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, the appeal regarding the claims of service connection are denied. Since the veteran's claims are not well grounded, he cannot invoke the VA's duty to assist in the development of the claim under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v. Brown, 6 Vet. App. 136 (1994). In claims that are not well grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. However, the VA 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 upon the particular facts of the case and the extent to which the Secretary of the VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case, to include the statement of the case and supplemental statement of the case, shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) as the veteran was fully informed of the reason for the denial of his claim and was advised of what evidence was needed in order to support his claim. Service Connection for an Acquired Psychiatric Disorder As noted hereinabove, in determining whether an application for benefits is well grounded, the truthfulness of evidence offered by the veteran and his representative is presumed. King at 21. The evidence currently before the Board includes medical evidence in the form of a June 1998 VA examination report suggesting that the veteran currently suffers from major depression caused by events experienced by the veteran during his participation in Operation Desert Shield/Storm. The Board also notes that the examiner who made this statement did not review the veteran's claims file. The veteran's claim therefore meets the requirements set forth in Caluza. Accordingly, the Board finds the veteran has submitted a well-grounded claim of service connection for an acquired psychiatric disorder. ORDER Service connection for a low back condition, rectal itching, hair loss, gastroesophageal reflux disease with duodenitis and a skin condition as due to undiagnosed illness and on a direct basis is denied, as well-grounded claims have not been submitted. As the veteran has submitted a well-grounded claim of service connection for an acquired psychiatric disorder to include PTSD, the appeal to this extent is allowed and is subject to further action as discussed hereinbelow. REMAND The veteran claims he suffers from depression, sleep problems, nightmares, fatigue, irritability and mood swings due to his participation in Operation Desert Shield/Storm. The Board notes that, since the veteran has been found to have submitted a well-grounded claim for service connection for a psychiatric disorder, VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a). The duty to assist the veteran in obtaining and developing facts and evidence to support his claim includes obtaining all relevant medical records. Littke v. Derwinski, 1 Vet. App. 90 (1990). The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). Regarding the veteran's claim for an increased rating for service-connected blurred vision, dizziness and headaches, the Board notes that the veteran essentially claims that his symptoms have increased since his last VA examination in November 1996. Therefore, the veteran should be afforded another examination. Moreover, the RO should obtain any additional ongoing treatment records pertinent to these claims. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is therefore REMANDED to the RO for the following development: 1. The RO should take appropriate steps to contact the veteran to obtain the names and addresses of all medical care providers who have treated him for an acquired psychiatric disorder and the service-connected blurred vision, dizziness and headaches since March 1999. The RO should request the veteran to furnish signed authorizations for release of any private medical records, if applicable. The RO should obtain all additional VA medical records and incorporate them into the claims folder. 2. The RO should schedule the veteran for a VA examination to determine the nature and likely etiology of the claimed psychiatric disorder. The examiner should offer an opinion, based on his/her review of the case, as to the medical probability that any currently demonstrated psychiatric disability is due disease or injury which was incurred in or aggravated by service. All indicated testing should be done in this regard. The claims folder should be made available to the examiner prior to the examination. 3. The veteran should be afforded a VA examination, to determine the current severity of the service-connected blurred vision, dizziness and headaches. All special studies and tests should be undertaken. The claims folder should be made available to the examiner prior to the examination. 4. Upon completion of the development requested hereinabove and the performance of any other development deemed appropriate, the veteran's claims should be reviewed by the RO. If any action taken remains adverse to the veteran, he and his attorney should be furnished with a supplemental statement of the case and should be given an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this action, the Board intimates no opinion, legal or factual, as to the ultimate decision warranted. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals