Citation Nr: 0007596 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 94-00 041A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a hiatal hernia. 2. Entitlement to service connection for a mass on the palate. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from January 1962 to January 1992. His appeal comes before the Board of Veterans' Appeals (Board) from an April 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran requested a hearing before a member of the Travel Board on his substantive appeal of January 1994. He did not, however, report to his Travel Board hearing scheduled for January 30, 1996. The RO rescheduled him for a Travel Board hearing on August 8, 1996, but he requested that it be postponed. The hearing was rescheduled for April 21, 1997, but he again requested that it be postponed. The RO rescheduled him for a hearing on June 10, 1999. There is no indication that the hearing was held, and the RO rescheduled him for another hearing on November 2, 1999. By letter sent in September 1999, the RO informed the veteran that if he did not appear to the November 2, 1999 hearing, it would be considered that his request for a Travel Board hearing was withdrawn. As he did not appear at the hearing on November 2, 1999, his claim is properly before the Board. FINDINGS OF FACT 1. The veteran has not presented competent medical evidence of a current diagnosis of a hiatal hernia. 2. The veteran has not presented competent medical evidence of a current diagnosis of a mass on the palate. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a hiatal hernia is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a mass on the palate is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran believes that he has a hiatal hernia and a mass on his palate that developed during service and should be service connected. The preliminary issue before the Board is whether the veteran has presented well-grounded claims for service connection. A veteran who submits a claim for benefits to the VA shall have the burden of offering sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to his claim, and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467- 68 (Fed. Cir. 1997). The veteran must demonstrate three elements to establish that a claim is well grounded. He must present competent medical evidence of a current disability. He must produce medical or, in some instances, lay evidence of an in-service incurrence or aggravation of a disease or injury. Finally, the veteran must offer medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Epps, 126 F.3d at 1468-69. A veteran may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that the same condition currently exists. Such evidence must be medical unless the condition at issue is a type as to which, under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In this case, the veteran was examined by the VA in August 1992 and an upper GI series was performed. According to the report, there was no evidence of obstruction in the esophagus. The stomach was normal in size and shape and the veteran's swallowing function was normal. The veteran did not have a filling defect or ulcer crater and the duodenal bulb distended normally. The radiologist's impression was a negative upper GI series. During the general medical examination, the VA examiner diagnosed a number of conditions, but none of them was a hiatal hernia. The examiner also did not diagnose a mass on the veteran's palate. During the veteran's RO hearing in September 1994, he stated that the upper GI series consisted of swallowing Barium to monitor his swallowing function. The veteran said that the endoscope revealed that the valve at the top of his stomach was not closing properly. However, as stated above, the examiner did not include any disorder in his report. The veteran has stated that the August 1992 examination was further deficient in that the VA examiner did not see the mass at the top of his esophagus. The veteran has indicated that this mass is plain to see and that the examiner should have diagnosed its existence. However, the veteran is a layperson. Although the veteran clearly believes that he has a hiatal hernia and a mass on his palate, he is not qualified to offer an opinion regarding questions requiring medical determinations. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Because there is no other medical evidence associated with the claims file concerning a hiatal hernia or a mass on his palate, the veteran's own contentions are the only indication regarding the existence of these conditions. Thus, his claims must be denied. See Epps v. Gober, 126 F.3d 1464, 1467-68 (Fed. Cir. 1997). Essentially, the veteran believes that he has been unfairly treated because the VA examiner in August 1992 did not make correct diagnoses regarding a hiatal hernia and a mass on his palate. However, the Board may not substitute its own medical judgment over a medical professional's judgment who had the benefit of examining the veteran in person. In this regard, the U.S. Court of Appeals for Veterans Claims has admonished the VA to be guided by medical expertise and not to substitute its own judgment concerning medical determinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As the veteran has failed to meet his initial burden of submitting evidence of a well-grounded claims for service connection, the VA is under no duty to assist him in developing the facts pertinent to those claims. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Furthermore, the Board is not aware of the existence of any additional relevant evidence that could serve to make his claims well grounded. Thus, the VA has no additional duty under 38 U.S.C.A. § 5103(a) (West 1991) to notify him of the evidence required to complete his application for service connection. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views its discussion as sufficient to inform the veteran of the elements necessary to well ground his claims and to explain why the current attempts fail. ORDER A well-grounded claim having not been submitted, service connection for a hiatal hernia is denied. A well-grounded claim having not been submitted, service connection for a mass on palate is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals