BVA9503647 DOCKET NO. 92-00 505 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a gastrointestinal disorder and residuals of injuries of the thoracolumbar spine, right knee, and right ankle. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from October 1946 to February 1948, and from March 1948 to February 1950. He also had unverified service in the Army Reserves (ACDUTRA) from September 1954 to December 1957. The appeal arose from a March 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO denied entitlement to service connection for residuals of injuries of the right knee, and right ankle, and for a gastrointestinal disorder. In a November 1990 rating decision, the RO affirmed the determinations previously entered, and denied entitlement to service connection for residuals of an injury of the thoracolumbar spine. When this case was before the Board of Veterans Appeals (Board) for appellate review, it was REMANDED to the RO for further development in March 1993. The RO affirmed its prior determinations when it issued a rating decision in January 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a chronic gastrointestinal disorder which originated during his active service as the result of stress associated with serving a tour of duty in post war Japan. He argues that he injured his thoracolumbar spine, right knee and ankle in 1957 during reserve drill when he fell off a tank. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted evidence of well grounded claims for service connection for a gastrointestinal disorder and residuals of injuries of the thoracolumbar spine, right knee, and right ankle. FINDING OF FACT The claims for service connection for a gastrointestinal disorder and residuals of injuries of the thoracolumbar spine, right knee, and right ankle are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. CONCLUSION OF LAW The claims for service connection for a gastrointestinal disorder and residuals of injuries of the thoracolumbar spine, right knee, and right ankle are not well grounded. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303(b),(c), 3.307, 3.309 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that the claims are well grounded, that is, that the claims are plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claims as to service connection for a gastrointestinal disorder and residuals of injuries of the thoracolumbar spine, right knee, and right ankle are not well grounded, and that his appeal should be dismissed. Service connection may be granted for a chronic disorder of the thoracolumbar spine, right knee, and right ankle or a chronic gastrointestinal disorder which are shown to have been incurred in or aggravated by active service. Such chronic disorders of the thoracolumbar spine, right knee and right ankle may be due to traumatic injury sustained therein. Arthritis of the thoracolumbar spine, right knee and right ankle, and peptic ulcer disease, if not shown in service, may be presumed to have been incurred in service if the disorders are shown to be disabling to a compensable degree during the first post service year. Service connection cannot be granted for a disorder not recognized as a disability under the law. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury (ACDUTRA) incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303(b)(c), 3.307, 3.309. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claims are possible or plausible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant does not meet this burden by merely presenting his lay opinion as he does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as such evidence is necessary for well grounded claims, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claims not well grounded. A review of the record discloses that the only service medical documentation on file is the report of general medical examination for separation for discharge dated in February 1950. Numerous attempts by the RO to obtain the appellant's complete service medical records have been unsuccessful. The National Personnel Records Center has advised the RO that the appellant has fire related service. In other words, any records belonging to the claimant which were on file were in all probability destroyed in the 1973 fire at the center. Nonetheless, the discharge examination report in and of itself is significant in showing that there were no significant abnormalities of the spine, right knee, right ankle, abdomen, and viscera. On file is a letter dated in September 1969 from Bruce Cominole, M.D., who noted the appellant had been his patient for the past sixteen years. On many occasions he had heard the veteran complain of low back pain. He had hurt his back in 1957 and received conservative therapy. In February 1968 he was working on a construction job when he fell down stairs and injured his back. X-rays revealed a congenital anomaly of the low back which would make it more prone to injury, according to Dr. Cominole. In November 1968 he fell from a scaffold to the ground and twisted his back. None of his injuries produced any fractures. His disability was due to soft tissue injury, mostly ligaments. His main disabling complaint was low back sprain with congenital low back malformation and sciatica. Dr. Cominole noted that the veteran had been born with some back abnormality. His back had been worse and pain lasted longer since his falls. It was possible he had brought to light an underlying arthritic tendency too early to be seen by x-ray. Dr. Cominole does not identify diagnostically the specific mid and low back disability the veteran sustained in 1957, nor does he conclude that the veteran's "low back sprain with congenital low back malformation and sciatica" was etiologically related to the injury the veteran sustained in 1957. The veteran was hospitalized by VA in January 1972. He was noted to have been involved in an airplane crash on December 8, 1971. His prior medical history was unremarkable except for a peptic ulcer having been detected by symptomatology and x-ray six years previously. There had never been a history of bleeding and his symptoms were controlled by diet alone. His left leg had been shorter than his right leg by one-half of an inch since childhood. The etiology for this was unknown. The appellant was again hospitalized by VA in November 1972. During the admission he complained of back pain. X-rays revealed the collapse of two vertebrae, T-11 and T-12. Some degenerative changes were seen, particularly at L-1 and L-2 at which spurring was noted. There appeared to be a drop of pantopague in the lumbar subarachnoid space. A July 1973 progress note shows the veteran's back was improving. No reference was made to a right knee or right ankle disability. The veteran was privately hospitalized in June 1976. His complaints included severe mid epigastric pain and nausea. He was noted to have severe back pain with radiation of pain into his right leg since a flying accident. He had been severely injured in the air crash and had a disc and fractured leg. He had a brace on the right leg. It was noted that he had no other serious health problems. A musculoskeletal examination disclosed much spasm in the lumbar paraspinal musculature with decreased range of motion. The discharge diagnoses were antral gastric ulcer and lumbar myositis. A July 1976 follow-up outpatient treatment report shows the appellant complained of back pain. The appellant was again privately hospitalized in August 1976 and was noted to have had intractable excruciating pain secondary to a known ulcer. In June 1976 he received treatment for an antral gastric ulcer and lumbar myositis. He was discharged when he refused further hospitalization even though an x-ray showed an active antral ulcer. The final discharge diagnosis was healing gastric ulcer. The appellant was privately hospitalized in May and June 1982 after being involved in an automobile accident during which he was thrown into the windshield and out on the road. He had been disabled since an airplane crash eleven years previously. He sustained a cerebral concussion, facial fracture, laceration of the left eyelid, and laceration of the liver with hemorrhage. He had arthrodesis of the left ankle. A general physical examination conducted during his hospitalization was negative for any gastrointestinal or spinal abnormalities. On file is a letter dated in February 1983 from David F. Scales, M.D. Dr. Scales noted that the veteran was involved in an airplane crash eleven years previously. In his general medical examination, he provided no findings as to any gastrointestinal or spinal abnormalities. The appellant was privately hospitalized in March 1986 at which time he underwent a gastroesophagoduodenoscopy with biopsy of the esophagus. The relevant discharge diagnoses were erosive esophagitis, duodenitis, and gastritis. A November 1988 private outpatient treatment report shows the veteran was treated for complaints of low back pain in November 1988. In an October 1989 letter, the veteran's wife advised that she knew the veteran when he served in Japan. She was well aware of his stomach problems and the difficulties he had trying to obtain medicine. In a November 1989 letter, Walter G. Jarrell, M.D., advised that he first saw the veteran in 1959 for treatment of knee and ankle injuries, and hemorrhagic gastritis, reportedly all due to service in the Army. Dr. Jarrell had no medical records. The next mention of knee or ankle symptomatology takes places in February 1987 at which time the veteran reportedly slipped and fell striking his right knee. An x-ray was taken to rule out fracture. The x-ray revealed early degenerative changes with no acute abnormality or gross evidence of fracture. The veteran was seen in November 1988 with complaints of right knee pain. Symptoms were said to have begun two years previously. In October 1989 he was treated for complaints of right ankle pain. A November 1989 x-ray was negative for any abnormalities. He was noted to have stress fracture of the right ankle. On file is a letter dated in November 1989 from James F. Loomis, O.D., an optometrist. He reported that Dr. Cominole had an office in the building of which he was the owner. He met the veteran in the early 1950's and got to know him personally. He learned about stomach problems reported to have developed while stationed in Japan in 1947. He required hospitalization for throwing up blood. He was suspected to have an ulcer. Dr. Loomis noted he observed the veteran to ambulate with a cane on his return from reserve camp in 1957. He had fallen from a tank that jumped forward, thereby twisting his right knee and ankle. Dr. Loomis noted the veteran had taken off an elastic knee support at which time he observed that the knee was still badly swollen and black and blue. In an April 1990 letter, [redacted], stated that he had known the veteran since the early 1950's. During the performance of maintenance work from 1953 to 1955, the veteran had never fallen or sustained injury, nor did he complain of back pain. During those years he was always in good physical condition. At that time he was a member of an Army reserve unit. Mr. [redacted] noted that he became aware of the veteran's having fallen from a tank. In a May 1990 letter, [redacted], an attorney, advised that he had known the veteran for some thirty years. He recalled the veteran's having mentioned a fall from a tank thereby sustaining injury. In a June 1990 letter, [redacted], advised that he became acquainted with the veteran during the late 1960's. He recalled during the course of the veteran's employment he made references to pain in the back and leg from an earlier injury. Mr. [redacted] was unaware of the details surrounding the injury. Received in 1990 was a letter from [redacted], who described himself as a retired Colonel who had served with the Florida National Guard. He reported having been an eyewitness to the incident wherein the veteran was thrown from a tank, landing on his side, leg first. He reportedly sustained injury to his right ankle and knee. There was no mention of a back injury. Mr. [redacted] observed that the veteran could not take aspirin because of a stomach problem said to have begun while the veteran served with the occupation Army in Japan during the second half of the 1940's. Received in 1990 were letters from [redacted] and [redacted], who described themselves as comrades of the veteran during their service in Japan in the late 1940's. Mr. [redacted] stated that he was informed by phone call that the veteran required hospitalization because he had thrown up blood. There were no x- ray facilities. Since that time the veteran had suffered from stomach problems. Mr. [redacted] provided similar information. On file is an April 1991 medical report from Dr. Gatien. Dr. Gatien noted that veteran reported having injured his low back in 1957. Apparently he had also injured his right knee and ankle at the same time. A tank was involved. Currently x-rays of the lumbar spine and right knee showed minimal degenerative changes. X-rays of the right knee disclosed some subtalar arthritis and post-traumatic arthritis. Dr. Gatien noted that the veteran gave a history of several injuries to his back since that time, including a fall from a scaffold in 1968. He was also involved in a plane crash in 1972. The diagnostic impressions were chronic lumbosacral strain/sprain, early degenerative joint disease of the right knee and right ankle and right subtalar joint. In an April 1991 letter, [redacted], advised that she had worked for Dr. Cominole in late 1959 and early 1960. She met the veteran who was a patient for a stomach problem said to have begun in service. His stomach bleeding had started in Japan during World War II, after Hiroshima, and had continued until the present. He reportedly had injured his leg while serving in the Army reserve. In an April 1991 letter, [redacted], advised that he was stationed in Japan during which time he met the veteran. He had heard of the veteran's throwing up blood. Mr. [redacted] donated blood in response to a call for donors to help the veteran who had thrown up a considerable amount of blood. The medical facilities in Japan were said to be very limited. In an April 1991 letter, [redacted], advised that she had known the veteran since 1955. They had both served in the occupation service in Japan. She became aware of his stomach problem which he said had begun in 1947, at which time he was hospitalized for coughing up blood. He described having injured his back, right knee, and right ankle when thrown from a tank in 1957. Ms. [redacted] advised she saw the veteran's injury the day he came back from camp. In a May 1991 letter, [redacted], advised that she had worked for Dr. Cominole as his assistant for approximately four years in the late 1950's. At that time the veteran did maintenance work in the office building. He was a patient for treatment of a stomach problem said to have begun during Army service. He was hospitalized for throwing up blood. While serving with the reserves he severely injured his back and leg. After the injury he was only able to do light maintenance work and had to walk with a cane. The veteran provided testimony at an RO hearing held in May 1991. He testified that he had no problems prior to his military service. In 1957 he fell off a tank during a reserve drill. At that time he hurt his back, right knee, and right ankle. At a December 1991 hearing, the veteran provided similar testimony. In a September 1991 letter, [redacted], a former employer, noted that he had hired the veteran to oversee his construction company in 1969. During his employment interview, he had recounted the circumstances regarding injuries to his back, ankle, and knee in service. Dr. Cominole reported that the veteran had problems with his stomach which started in the Army. His back was seriously injured in a fall from a tank. Mr. [redacted] was unaware of the veteran's having been injured during his employment. In a September 1991 letter, [redacted], the appellant's brother, noted that while the appellant was stationed in Japan from 1947 to 1949, he wrote home describing throwing up blood and requiring hospitalization. The medical facility did not have x-ray capacity, and the reason for the vomiting could not be determined. After his discharge in 1950 he sought medical treatment for his stomach. The appellant's brother noted that the veteran fell from a tank and injured his back and leg in 1957. He had had problems ever since the injury. In a November 1991 letter, [redacted] noted that the appellant had performed maintenance work on his properties. He had fallen on several occasions and each time would reinjure his back, right knee and ankle. Dr. Cominole had confirmed the veteran's history of having sustained injury to his back while at Ft. Stewart, Georgia. In a November 1991 letter, [redacted], advised that she had known the veteran since the early 1950's. She described herself as an administrative assistant for a pharmacy. Ms. [redacted] had seen the appellant's many prescriptions and medications he had to take for a severe stomach problem said to have started while serving in Japan during World War II. He was hospitalized after throwing up blood. Ms. [redacted] knew that the veteran had had to see physicians for his stomach since his discharge in the 1950's. She noted the veteran was thrown from a tank thereby sustaining injury to his back and right leg. When he returned from Fort Stewart , Georgia, he was using a cane and had used a cane since that time. He had also been involved in an airplane crash in 1971. In a November 1991 letter, Seymour Morse, M.D., advised that he had treated the veteran since November 1972. At that time there was noted a fracture of the T-11 vertebral body. This seemed to be an older injury preceding the date of examination. Dr. Morse noted he could not ascertain the date of injury. In a subsequently dated note he advised that he had no records of treatment. The Board accepts the veteran's assertion and the statements from persons on his behalf that he threw up or vomited blood during service in 1947 and that he was hospitalized for it. Nevertheless, no physician or qualified medical expert has identified what chronic gastrointestinal disease was present in 1947, if any, or for many years thereafter, and none has linked the veteran's current gastrointestinal disease to the symptomatology he had in 1947. The veteran is not a physician and he is not qualified to make the association. The veteran has argued that he sustained traumatic injury to his back, right knee and ankle as the result of falling off a tank during ACDUTRA in 1957. The evidentiary record contains several statements of individuals who had knowledge of the accident and injuries in 1957. The Board does not question that an accident occurred. However, the nature of the injuries, including their diagnoses, is unknown. Were they acute and transitory? Are his current disabilities the result of the accidents beginning in about 1968 when he injured his back in a construction accident? Thereafter followed a plane crash and an automobile accident. No physician has linked any current disability with the claimed accident in 1957. The Board recognizes that the veteran's appeal is being disposed of in a manner different from that utilized by the RO. The Board must therefore consider whether the appellant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the veteran's claims and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. In this regard, the Board points out that by the action of dismissing his claims, the veteran is not burdened with a prior final adjudication on the merits. Thus, if he is able to submit well-grounded claims in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claims after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). ORDER The claims for service connection for a gastrointestinal disorder and residuals of injuries of the thoracolumbar spine, right knee, and right ankle are dismissed. BRUCE KANNEE 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.