BVA9504227 DOCKET NO. 93-10 839 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to service connection for osteoarthritis. 2. Entitlement to service connection for heart disease. 3. Entitlement to service connection for helminthiasis. 4. Entitlement to service connection for dysentery. 5. Entitlement to service connection for chronic renal failure. ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had recognized service as a member of the Commonwealth Army of the Philippines in the service of the Armed Forces of the United States from December 1941 to October 1942 and from August 1945 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he incurred various disabilities as the result of his captivity as a prisoner of war (POW) of the Japanese during World War II. 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 preponderance of the evidence is against entitlement to service connection for osteoarthritis and chronic renal failure, and that the veteran's claims for service connection for heart disease, helminthiasis, and dysentery must be dismissed because they are not well-grounded. FINDINGS OF FACT 1. The veteran was a prisoner of war of the Japanese Government for at least 30 days during World War II. 2. The veteran has submitted well-grounded claims for entitlement to service connection for osteoarthritis and chronic renal failure, and the evidence is sufficient to equitably decide his appeal of the denial of service connection for these two disorders. 3. The veteran's osteoarthritis, first established many years after service, has not been shown to be traumatic in origin, and has not been related to service by any physician. 4. The veteran's chronic renal failure, first established many years after service, has not been related to service by any physician. 5. The veteran's claims for service connection for heart disease, helminthiasis, and dysentery are not plausible because the evidence does not show that these disorders currently exist. CONCLUSIONS OF LAW 1. Osteoarthritis was not incurred in or aggravated by active military service, and may not be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (1994). 2. The veteran has not submitted a well-grounded claim for entitlement to service connection for heart disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 3. The veteran has not submitted a well-grounded claim for entitlement to service connection for helminthiasis. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 4. The veteran has not submitted a well-grounded claim for entitlement to service connection for dysentery. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 5. Chronic renal failure was not incurred in or aggravated by active military service, and may not be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has the "initial 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) (West 1991). "A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Solely for the purpose of determining whether or not there is a well grounded claim, evidence submitted by the claimant will be presumed credible. King v. Brown, 5 Vet.App. 19, 21 (1993). "If a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate that claim." Boeck v. Brown, 6 Vet.App. 14, 17 (1993). Therefore, such an appeal must be dismissed. Service connection may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a) (1994). When a chronic disease is shown during service, subsequent manifestations of the same disease are service connected unless clearly attributable to intercurrent causes. "For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observations to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic'." 38 C.F.R. § 3.303(b) (1994). Continuity of symptomatology is required only when the condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1994). Service connection can be established by presumption for certain chronic diseases, such as arteriosclerosis, arthritis, cardiovascular-renal disease, manifest to a degree of 10 percent or more within one year after service. 38 C.F.R. §§ 3.307, 3.309 (1994). For a former POW, service connection can be established by presumption for chronic dysentery, helminthiasis, and malnutrition (including optic atrophy associated with malnutrition), and post-traumatic osteoarthritis, manifest to a degree of 10 percent or more at any time after separation from service. 38 C.F.R. § 3.309(c) (1994). However, presumptive periods are not intended to limit service connection for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (1994). Service connection may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a) (1994). When a chronic disease is shown during service, subsequent manifestations of the same disease are service connected unless clearly attributable to intercurrent causes. "For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observations to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic'." 38 C.F.R. § 3.303(b) (1994). Continuity of symptomatology is required only when the condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1994). Service connection can be established by presumption for certain chronic diseases manifest to a degree of 10 percent or more within one year after service. 38 C.F.R. §§ 3.307, 3.309 (1994). However, presumptive periods are not intended to limit service connection for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (1994). In order for service connection to be established, there must not only be evidence of a disease or injury during service, there must also be evidence of a current disability which is attributable to such disease or injury. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Thus, if there is no current disability, a claim can not be well-grounded because there is no basis under the law upon which service connection may be established. See Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The Board does not have jurisdiction to decide a not well-grounded claim, and accordingly, such an appeal must be dismissed. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993). Service connection is in effect for peptic ulcer with gastroduodenal gastritis. The service medical records reveal the veteran received a physical examination in August 1945. He weighed 110 pounds. His height was recorded to be 60 inches. His blood pressure was 120/60. Ringworm was detected in the anal and pubic areas. No other abnormalities were noted. Ringworm in the inguinal and buttocks regions was noted at the examination for separation in May 1946. No other abnormalities were noted. A chest X-ray was normal. His weight was 104 pounds. His blood pressure was 110/70. The veteran reported on an Affidavit For Philippine Army Personnel, executed in June 1946, that he experienced malaria, beginning in December 1942. The veteran submitted a Medical Certificate, executed in October 1990, from a physician who indicated the veteran was treated two to three times per month for osteoarthritis of the upper and lower extremities, neuralgia, pains in the back, heart disease, helminthiasis, dysentery, and chronic renal failure, from March 1947 to November 1948, and from February 1949 to April 1955. The daughter of the treating physician informed the VA that the clinical records for the period from 1947 to 1955 had been destroyed by termites. The veteran submitted a Medical Certificate, executed in September 1992, from another physician who treated the veteran once per month from 1955 to August 1992 for chronic renal failure. In November 1992, the physician reported that the clinical records as of June 1955 had been destroyed. The VA performed a POW protocol examination of the veteran in July 1991. He completed VA Form 10-0048, Former POW Medical History. He reported that a sharp piece of wood cut his stomach when he was pushed to the ground by a Japanese soldier. He added that an operation was performed on his stomach during his captivity. He related that he had experienced the following pertinent symptoms during captivity: chest pain, rapid heart beats, poor night vision, sores at the angles of the mouth, sore tongue, excessive thirst, swollen glands, skin rashes, blisters, dry scaly skin, numbness or weakness in the arms or legs, pale skin, vomiting, diarrhea, chills, aches or pains in the muscles and/or joints, fever, swelling in the joints, swelling in the legs and/or feet, and swelling of the muscles. The veteran related to the examiner that he was told that the episodes of fever and chills, occasionally two to three times per month, were due to malaria. He also reported that he had experienced the following pertinent symptoms: weight change, fever or chills, night sweats, joint pain of the knees, stiffness, and cough. The examiner noted poor turgor of the veteran's skin. There was a healed 6 inch scar over the abdomen. No other abnormalities were found on examination of the various body systems. The results of the laboratory studies were negative for hepatitis or parasites. The results of the electrocardiogram were interpreted to be normal. A chest X-ray showed right pleural thickening with irregular infiltrates in the right upper lobe and left perihilar area. The diagnostic impression of the X-ray findings was moderate infiltrates with bilateral perihilar bronchitis and right sulcus effusion or adhesion, etiology and activity undetermined. An X-ray of the lumbosacral spine revealed marginal spurs and syndesmotic bridging at T11-T12 and T-12-L1, minimal osteoarthritis of the posterior intervertebral, sacroiliac, and hip joints, and diffuse senile osteoporosis. An X-ray of the knees revealed minimal degenerative osteoarthritis of both knee joints. The diagnoses were (1) pulmonary infiltrates of unknown etiology; (2) osteoarthritis of the lumbosacral, sacroiliac, and hip joints; (3) peptic ulcer with gastroduodenal gastritis; and (4) chronic renal failure of unknown etiology. The examiner noted there was no evidence of malaria, ringworm, malnutrition, heart disease, anemia, helminthiasis, avitaminosis, or dysentery. I. Osteoarthritis Based on the reports of the veteran's two treating physicians, and the evidence of osteoarthritis at the 1991 VA POW protocol examination, the Board determines that the veteran has submitted a well-grounded claim for entitlement to service connection for osteoarthritis within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is satisfied that the evidence is sufficient to equitably decide the veteran's appeal of the denial of service connection for this disorder. Initially, the Board notes that the osteoarthritis of the veteran's various joints has not been noted by VA physicians or the veteran's treating physicians to be traumatic in origin. In fact, the osteoarthritis of the veteran's knees was described as degenerative in nature by the VA radiologist. Moreover, the evidence does not contradict a finding that the osteoarthritis is not traumatic in origin. The only evidence of trauma experienced by the veteran during the service is the veteran's statement that he cut his stomach when pushed to the ground by a Japanese soldier which resulted in surgery being performed on his stomach during captivity. There is no evidence of direct trauma during service to his back, hips, and knees. Moreover, the Board does not find the veteran's statement to be credible because the abdominal scar found on the 1991 VA examination was not noted on the two service physical examinations. Furthermore, the veteran's osteoarthritis affects paired joints and the veteran is over 70 years of age, supporting the finding that the veteran's osteoarthritis is not traumatic in origin. Based on the foregoing, the Board determines that traumatic osteoarthritis has not been shown. Thus, service connection is not warranted on a presumptive basis for osteoarthritis under 38 C.F.R. § 3.309(c) for a POW. The Board notes that a treating physician reported that the veteran was treated for osteoarthritis of the upper and lower extremities, possibly as early as March 1947, within the one year presumptive period following service. However, the service medical records are negative for any complaints, findings, or diagnoses referable to arthritis of any of the joints in question. The Board recognizes that such evidence is not required to establish service connection on a presumptive basis. Furthermore, the evidentiary basis needed to establish presumptive service connection may be established by competent medical and/or lay evidence. 38 C.F.R. § 3.307 (1994); see Watson V. Brown, 4 Vet.App. 309, 314-315 (1993). Although the physician's report of treating the veteran from 1947 to 1955 for osteoarthritis is medical evidence, there is no indication that the diagnosis was based on X-ray findings. In fact, the physician did not relate the symptoms or clinical findings upon which his diagnosis of osteoarthritis was based. Moreover, there is no evidence of medical treatment of the veteran for arthritis from 1955 until 1991 which would be expected if the veteran had acquired this chronic disorder during World War II and experienced symptoms during the first few years after service. In addition, no physician has linked the veteran's osteoarthritis to service. The Board assigns little probative value to the report of the physician who treated the veteran from 1947 to 1955. The Board determines that the evidence does not establish that the veteran's osteoarthritis was present during service or during the one-year period following service. The Board also determines that osteoarthritis revealed by X-rays more than 40 years after service has not been shown to be related to service. Based on these findings, the preponderance of the evidence is against entitlement to service connection for osteoarthritis, leaving no doubt to be resolved in the veteran's favor. II. Heart Disease Although the physician who treated the veteran from 1947 to 1955 indicated the veteran was treated for heart disease, this disorder was not found on examination in 1991. The VA POW protocol examination revealed no evidence of this disorder. The veteran has submitted no other evidence that the disorder currently exists. Heart disease was not shown during service. Therefore, this service connection claim is not plausible or capable of substantiation and must be dismissed since it is not well-grounded. See Rabideau at 2 Vet.App. at 143; Boeck at 6 Vet.App. 17. III. Helminthiasis Although the physician who treated the veteran from 1947 to 1955 indicated the veteran was treated for this disorder, the veteran was specifically tested and examined for this disorder in 1991. The VA POW protocol examination revealed no evidence of this disorder. The veteran has submitted no other evidence that the disorder currently exists. This disorder was not shown during service. Therefore, this service connection claim is not plausible or capable of substantiation and must be dismissed since it is not well-grounded. See Rabideau at 2 Vet.App. at 143; Boeck at 6 Vet.App. 17. IV. Dysentery Although the physician who treated the veteran from 1947 to 1955 indicated the veteran was treated for this disorder, the veteran was specifically tested and examined for this disorder in 1991. The VA POW protocol examination revealed no evidence of this disorder. The veteran has submitted no other evidence that the disorder currently exists. This disorder was not shown during service. Therefore, this service connection claim is not plausible or capable of substantiation and must be dismissed since it is not well-grounded. See Rabideau at 2 Vet.App. at 143; Boeck at 6 Vet.App. 17. V. Chronic Renal Failure Based on the reports of the veteran's two treating physicians, and the evidence of chronic renal failure at the 1991 VA POW protocol examination, the Board determines that the veteran has submitted a well-grounded claim for entitlement to service connection for chronic renal failure within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is satisfied that the evidence is sufficient to equitably decide the veteran's appeal of the denial of service connection for this disorder. Chronic renal failure was diagnosed on the VA POW protocol examination. The Board notes that two treating physicians have reported that the veteran was treated for this disorder, possibly as early as March 1947, within the one year presumptive period following service, until 1992. However, the service medical records are negative for any complaints, findings, or diagnoses referable to chronic renal failure. Neither physician indicated on what basis the diagnosis was made. There is no report of symptoms or of results of laboratory studies. Even though the veteran claims to have experienced a serious medical disorder, chronic renal failure, for over 40 years, he has provided no clinical records showing treatment such as hemodialysis. Although the records of the two treating general practitioners may have been destroyed, it is not plausible to the Board that the veteran has been unable to provide any clinical records from renal specialists or from medical facilities specializing in the care of kidney disorders. Based on this evidence, the Board finds that the reports of the two physicians do not establish the existence of a kidney disorder prior to 1991. Since chronic renal failure was not shown until many years after service, and no physician has linked the disorder to service, the Board determines that the preponderance of the evidence is against entitlement to service connection for chronic renal failure, leaving no doubt to be resolved in the veteran's favor. ORDER Entitlement to service connection for osteoarthritis is denied. The appeal of the denial of the veteran's claim for service connection for heart disease is dismissed. The appeal of the denial of the veteran's claim for service connection for helminthiasis is dismissed. The appeal of the denial of the veteran's claim for service connection for dysentery is dismissed. Entitlement to service connection for chronic renal failure is denied. WARREN W. RICE, JR. 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.