BVA9502138 DOCKET NO. 93-08 718 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a stomach disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from March 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) from a July 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for a stomach disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his claim for service connection for a stomach disorder. Specifically, he contends that he was hospitalized for five days during service for a stomach disorder. 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's claim is not well grounded and that, therefore, VA's statutory duty to assist the veteran in developing facts pertinent to his claim did not arise in this case. 38 U.S.C.A. § 5107(a) (West 1991). The Board also concludes that VA fulfilled its statutory obligation to notify the veteran of the evidence necessary to complete his application for benefits. 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, No. 93-985, slip op. at 12-13 (U.S. Vet. App. Sept. 12, 1994). FINDINGS OF FACT 1. There is no evidence in the service medical records of complaints or findings of a stomach disorder. 2. The earliest medical evidence of a stomach disorder received by the RO in support of this claim is dated in 1991. 3. The veteran's current stomach disorder is not shown to have existed before, during, or for more than thirty years after service. 4. A July 1991 notification letter from the RO, an October 1991 statement of the case, and a September 1992 supplemental statement of the case informed the veteran of the evidence needed to support his claim for service connection for a stomach disorder. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a stomach disorder is not well grounded, and therefore VA's statutory duty to assist the veteran in developing facts pertinent to his claim was not triggered in this case. 38 U.S.C.A. § 5107(a) (West 1991). 2. The RO fulfilled its statutory duty to notify the veteran of the evidence necessary to complete his application for benefits. 38 U.S.C.A. § 5103(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for a disability requires evidence of the existence of current disability and evidence that that disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1993). For certain chronic diseases, such as peptic ulcers and calculi of the gallbladder, the law provides a presumption that such a disorder was incurred in service if evidence shows that the disorder became manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (1993). In making a claim for service connection for a disorder, the veteran has the 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). The United States Court of Veterans Appeals (Court) has defined the term "well-grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Court has further noted that "[a]lthough the claim need not be conclusive, the statute provides that it must be accompanied by evidence." Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); 38 U.S.C.A. § 5107(a) (West 1991). Moreover, the Court has stated that "[t]he quality and quantity of the evidence required to meet this statutory burden . . . will depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Where the issue in a case is factual, competent lay testimony may suffice; however, "where the determination involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Id. at 93. In this case, the issue is whether the veteran's current stomach disorder, including peptic ulcer disease and cholelithiasis (i.e., gallstones (Dorland's Illustrated Medical Dictionary 323 (27th ed. 1988))), was incurred in service ("direct" service connection) or manifested itself to a degree of 10 percent or more within a year following the veteran's separation from service, i.e., by November 1958 ("presumptive" service connection). With regard to whether a stomach disorder was incurred in service, the Board notes that there is no evidence in the veteran's service medical records of complaints or findings of a stomach disorder. Moreover, the earliest medical evidence of a stomach disorder received by the RO in support of this claim is dated in 1991. The veteran stated, when seeking treatment in February 1991, that his stomach problems were of 5 years' duration. Furthermore, with regard to the veteran's sworn testimony at his personal hearing in March 1992 that he was hospitalized for five days during service for a stomach disorder, the Board notes that, although a lay person is competent to testify as to an event, such as a period of hospitalization, or as to symptoms of a disorder that he experienced, such as abdominal pain, in this case the lack of corroboration in the service medical records regarding a period of hospitalization during service calls into question the credibility and probative value of the veteran's testimony. See Caldwell v. Derwinski, 1 Vet.App. 466, 469 (1991); Cartright v. Derwinski, 2 Vet.App. 24, 26 (1991). However, even assuming the veteran's testimony to be credible, lay testimony is not cognizable for matters requiring medical knowledge, such as whether the stomach disorder the veteran states that he experienced in service in 1956 is etiologically related to his current stomach disorders, the existence of which are not documented by medical evidence until 1991. Grottveit, 5 Vet.App. at 92-93; Clarkson v. Brown, 4 Vet.App. 565, 567 (1993); see Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992) (lay persons are not competent to offer medical opinions). A determination that a disease or injury suffered in service resulted in a current disability is necessary to establish service connection for that disability, and medical evidence showing that such a causal relationship is plausible is necessary to establish a well grounded claim for service connection. 38 U.S.C.A. § 1131 (West 1991); see Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). With regard to whether the veteran's current peptic ulcer disease or cholelithiasis (gallstones) had manifested themselves to a degree of 10 percent or more in the year following his discharge from service, there is no evidence in the claims file to that effect. As noted above, the first post-service medical evidence in the veteran's claims file of stomach disorders are VA outpatient treatment reports dated in 1991, more than thirty years after the veteran's separation from service. Given the absence of evidence of manifestation of a stomach disorder to a degree of 10 percent or more within the year following separation from service, the Board concludes that a claim for service connection for a stomach disorder on a presumptive basis is not well grounded. Finally, as to VA's obligation under 38 U.S.C.A. § 5103(a) to notify a claimant of the evidence necessary to complete his application, the Board finds that the RO complied with this obligation in its July 1991 notification letter of the denial of the claim, in an October 1991 statement of the case, and in a September 1992 supplemental statement of the case in which it informed the veteran of the evidence needed to support his claim for service connection for a stomach disorder. Robinette, slip op. at 12-13 (where a claim is not well grounded it is incomplete, and VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application). In the notification letter, at which time the RO did not have evidence yet of a current stomach disorder, the RO advised the veteran that he "may submit evidence at any time showing the disability exists and was incurred in or aggravated by service or was treated within one year after service." In the October 1991 statement of the case, the RO informed the veteran of the absence of any evidence -- before, during, or after service -- of a stomach disorder. After receiving evidence showing treatment for current stomach disorders, the RO issued a supplemental statement of the case in September 1992 in which it informed the veteran that, although there was evidence of current stomach disorders, there was still no evidence of a stomach disorder during service or for more than thirty years thereafter. In light of the foregoing, the Board concludes that the veteran's claim was not well grounded, and that the RO was not under a duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). Although the RO did not specifically state that it denied the veteran's claim on the basis that it was not well grounded, the Board concludes that this error was harmless. See Robinette, slip op. at 13 (citing Grottveit, 5 Vet.App. at 93; Edenfield v. Brown, 6 Vet.App. 432 (1994) (per curiam order) (requesting briefing on whether remedy for deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error, or vacating of the Board decision). Accordingly, the Board dismisses the veteran's claim for service connection for a stomach disorder as not well grounded. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993) (if a claim is not well grounded, the Board does not have jurisdiction to adjudicate it). ORDER Because it is not well grounded, the veteran's claim for service connection for a stomach disorder is dismissed. JAN DONSBACH 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.