BVA9502300 DOCKET NO. 93-08 992 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a rectal disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD J. Dutzman, Associate Counsel INTRODUCTION The veteran had active service from October 1971 to May 1973. This matter came before the Board on appeal from a September 1992, rating decision of the regional office (RO). The RO denied entitlement to service connection for an intersphincteric rectal fistula, claimed as an intestinal disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his rectal disability is the result of an assault perpetrated on his person during the period of active service. He asserts that his intestines were bruised during the assault and that the injury led to the development of a rectal disability. He maintains that service connection was granted for retinitis pigmentosa on the basis of the assault during service, and that his rectal disability should be recognized as a residual of the same attack. He further contends that, he was told that, portions of another veteran's service medical records were contained in his claims folders. He questions whether portions of his service medical records may likewise have been misplaced in other veteran's claims folders. 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 a well- grounded claim for service connection for a rectal disability. FINDINGS OF FACT 1. A chronic rectal disability was not demonstrated during service or for many years thereafter. 2. There is no credible evidence linking the veteran's current rectal disability to service. CONCLUSION OF LAW The veteran has not presented a well-grounded claim for service connection for a rectal disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the provisions of 38 U.S.C.A. § 5107(a), the veteran bears the initial burden of submitting evidence showing that his claim is well-grounded. The question of whether or not a claim is well-grounded is significant. If a claim is not well-grounded, the statutory duty to assist the veteran in the development of his claim does not attach. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). Furthermore, the Board does not have jurisdiction to adjudicate that claim and it must be dismissed. Id. A claim is considered to be well-grounded if the evidence submitted will justify a belief by a fair and impartial individual that the claim is plausible. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). A claim is not well- grounded if the service medical records do not show the claimed disability and there is no medical evidence to link the current disability with events in service or with a service-connected disability. Montgomery v. Brown, 4 Vet. App. 343 (1993). In determining whether a claim is well-grounded, all of the supporting evidence is presumed to be true. King v. Brown, 5 Vet. App. 19, 21 (1993). This includes evidentiary assertions made by the claimant. Id. Exceptions to this rule occur if the claim is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Id. Thus, where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). However, where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible is required. Id. As such, a statement by a claimant as to what a doctor told him is insufficient to establish medical causation. Warren v. Brown, 6 Vet. App. 4, 6 (1993). After a complete review of the evidence and the application of the above-cited law, the Board finds that the claim of this veteran is not well-grounded. In making this determination, the Board accepted as true the evidentiary assertion of the veteran that he was assaulted while in service. However, the service medical records contain no reference to either medical treatment for, or a disability resulting from, the assault. Furthermore, the veteran did not report a rectal disability in his initial claim for benefits received in June 1974, on VA examination in October 1974, or when he initially reported an assault during service in a statement dated in January 1990. The veteran reported symptoms of a gastrointestinal disability on VA examination in April 1990, but no specific history of intestinal or rectal injury was recorded, and there were no findings referable to a rectal disability. The Board notes parenthetically that the veteran has not claimed service connection for a gastrointestinal disability, and has introduced no evidence linking such a disability with service. A rectal disability was first reported during private hospitalization in July 1992. The veteran has failed to present credible medical evidence establishing a link between the assault while in service and his current rectal disability. His July 1992, statement that a physician had linked his current "medical problems" to the assault is hearsay and is not supported by medical evidence. As for the concern of the veteran that his file may not be inviolate, there has been no specific evidence presented to support such a contention. No other veteran's records appear anywhere in his file and his service medical records appear complete. Even assuming for the sake of argument, that there were service medical records showing bruised intestines or a rectal injury during service, such records would not render his claim well-grounded. There would still be no credible evidence linking the injury with the rectal disability, first identified nearly 20 years after service. The Board has considered the veteran's contention that he was granted service connection for retinitis pigmentosa on the basis of an assault during service, and that VA should therefore recognize his rectal disability as a service-connected residual of that attack. However, the May 1990 rating decision, in which the RO granted service connection for the eye disability, makes clear that the grant was based on a finding of deteriorating vision identified during service, and not because of evidence of an assault during service. As noted above, the service medical records do not contain any evidence of an assault during service, and even if they did report such an assault, there is no credible evidence linking the current disability with service. Recently, the Court has suggested that where a claim is not well- grounded, the Veteran's Administration may have a duty to give notice to the veteran of the evidence necessary to render the claim well-grounded. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Sept. 12, 1994), reconsideration granted in part (Oct. 21, 1994) (per curiam). In this case the veteran should have been put on notice as to the evidence needed to render his claim well-grounded by information contained in the claim form he completed in July, 1992, the letter notifying him of the denial of his claim in October, 1992, and the statement of the case sent to him in December, 1992. Since there is no evidence that the veteran's claim is well- grounded, it must be dismissed. ORDER Having failed to submit evidence that it is well-grounded, the veteran's claim of service connection for a rectal disability is dismissed. LAWRENCE M. SULLIVAN 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.