Citation Nr: 0005000 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-19 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a stomach disorder. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran served on active duty from February 1968 to October 1969. He also had a period of active duty for training in excess of four years prior to February 1968, when he was called up. His claim comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO), which denied the veteran's claims for service connection for a stomach disorder, bilateral hearing loss, and tinnitus. By rating decision dated October 1999, the RO granted the veteran's claims for service connection for bilateral hearing loss and tinnitus; therefore, these claims are not before the Board for appellate review. The RO also denied the veteran's claim for service connection for a back disorder. In October 1999, the veteran submitted a notice of disagreement with the RO's October 1999 denial of his back claim. The Board addresses this matter in the Remand section of this decision. FINDINGS OF FACT 1. There is no medical evidence of record linking a stomach disorder to the veteran's gastrointestinal complaints treated in service, or establishing that an ulcer manifested to a degree of 10 percent within a year of the veteran's discharge from service. 2. There is no medical evidence of record establishing that the veteran had a chronic stomach disorder in service, or linking a stomach disorder to any continuity of gastrointestinal symptomatology experienced after discharge from service. 3. The issue before the Board does not involve a question of medical complexity or controversy. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a stomach disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Securing an advisory medical opinion from an independent medical expert is not warranted. 38 U.S.C.A. § 7109 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issue before the Board is whether the veteran is entitled to service connection for a stomach disorder. Before the Board can decide the merits of the veteran's claim, it must first determine whether the veteran has presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). To be well grounded, a claim need not be conclusive, but it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In the absence of evidence of a well-grounded claim there is no duty to assist the claimant in developing the facts pertinent to his claim and his claim fails. Epps v. Gober, 126 F.3d 1464, 1467-1468 (Fed. Cir. 1997). To establish that a claim for service connection is well grounded, the record must include lay or medical evidence, whichever is appropriate in the particular case, demonstrating that a disease or injury was incurred or aggravated during active service, and medical evidence showing that the veteran currently has a disability, and that a nexus exists between that disability and the in-service injury or disease. Id. at 1467-1468. Service connection may be presumed if it is shown that the veteran manifested peptic (gastric or duodenal) ulcers to a degree of ten percent within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309(a) (1999). A claimant 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 that 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). The veteran served on active duty from February 1968 to October 1969. He also had a period of active duty for training in excess of four years prior to his February 1968 call to active duty. His service medical records reflect that he was treated for stomach complaints during both periods of service. In April 1964, prior to the veteran's period of active duty, the veteran sought treatment for pain in his lower abdomen and occasional vomiting. During this visit, he reported that while he was home on leave, he saw a physician who diagnosed an ulcer based on results of a gastrointestinal (GI) study. In response to the veteran's statements, another upper GI study was conducted (including multiple films of the duodenal bulb and antrum). A report of this study shows a normal esophagus, stomach, duodenal bulb and duodenal loop, no acute or chronic ulcerative disease, and no abnormalities. In April 1968, during a period of active duty, the veteran sought treatment for stomach pains. He reported that he had been having stabbing epigastric pain, mainly on an empty stomach, for one year. An upper GI study revealed: an irregularity along the greater curvature of the stomach, suggestive of prominent mucosal folds, without definite demonstration of an ulcer crater; a suggestive area of ulceration near the apex portion of the bulb; and a normal proximal small bowel. Based on the suspiciousness of the greater curvature as well as the duodenal bulb, the veteran was advised to undergo another upper GI study within the next three weeks. In May 1968, the veteran underwent the recommended follow-up upper GI tract series, and was shown to have a normal upper GI tract. Specifically, a physician noted that the veteran had: free and easy transit of barium from the esophagus to the stomach without evidence of a hiatal hernia or esophageal varices; a normal "J" type stomach with good tone and peristalsis and no extrinsic or intrinsic lesions; and a duodenal bulb that filled adequately without evidence of ulceration. By June 1968, the veteran was still complaining of abdominal pain. During a separation examination in September 1969, the veteran did not report, and the examining physician did not note, any stomach abnormalities. In August 1997, the veteran filed an application for service connection for a stomach disorder. Therein he indicated that he had been treated for this disorder in service from April 1968 to October 1969, and by Stuart P. Embury, M.D., from 1975 to the present. Records of the veteran's treatment by Dr. Embury include laboratory results dated from 1980, progress notes dated from 1991, and an operation report dated in 1993. The progress notes reflect that the veteran was treated from 1991 to 1997 for multiple disorders unrelated to his stomach. They also reflect that, during a physical evaluation conducted in August 1993, he had no GI complaints, was noted to have an OK stomach, and was diagnosed with a right reducible hernia. Several days later, the veteran underwent a right cooper ligament inguinal herniorrhaphy. The claims file also contains outpatient treatment records from a VA Medical Center, the White-Musselman Hearing Aid Center, and the Grand Island Ear, Nose & Throat Clinic, a letter from Craig A. Foss, M.C.D., a questionnaire completed by the veteran in September 1999, and a VA examination report dated September 1999. This evidence does not include any findings related to the veteran's alleged stomach disorder. The evidence in this case does not establish that the veteran currently has a stomach disorder. However, the Board will assume for the sake of further discussion that the veteran's hernia, discovered and repaired in August 1993, constitutes sufficient evidence of a current stomach disorder. That notwithstanding, there is no evidence, beyond the veteran's contentions, linking this disorder to the veteran's gastrointestinal complaints treated in service. Moreover, a nexus may not be presumed in this case because there is no evidence establishing that an ulcer manifested to a degree of 10 percent within a year of the veteran's discharge from service. In fact, despite the fact that the veteran was shown to have an irregularity of the stomach during active duty, he has never been diagnosed with an ulcer. There is also no evidence, beyond the veteran's contentions, establishing that the veteran had a chronic stomach disorder in service, or linking any current stomach disorder to continuity of gastrointestinal symptomatology allegedly experienced after discharge from service. As the veteran is a layperson with no medical training or expertise, his contentions, alone, are insufficient to establish any of the previously noted elements of a well-grounded claim. Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992) (holding that laypersons are not competent to offer medical opinions). The veteran has not submitted evidence of a well-grounded claim. Therefore, his claim must be denied. The Board acknowledges the contentions of the veteran's representative, which include: (1) that the complexity of the issue and inadequacy of the VA examination warrant an advisory/independent medical opinion; (2) that the current examination did not provide a nexus or etiology for the claimed condition; (3) that the veteran's claim warrants application of 38 C.F.R. § 3.102, the reasonable doubt doctrine; and (4) that the veteran is entitled to adequate reasons and bases for a denial. With regard to the first contention, the Board notes that, according to statute, an opinion of an independent medical expert may be obtained in cases where the issue under consideration is of such medical complexity or controversy that it justifies soliciting an opinion from an independent medical expert. 38 U.S.C.A. § 7109 (West 1991). However, the issue in this case is neither complex nor controversial; therefore, solicitation of a medical opinion from an independent medical expert is not warranted. With regard to the second contention, the Board points out that the veteran has not undergone a VA examination of his stomach. Regardless, the veteran is not entitled to a VA examination for the purpose of obtaining an opinion as to the etiology of his alleged stomach disorder. Case law is clear: 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 his claim must be denied. Epps v. Gober, 126 F.3d at 1467-1468. Finally, with regard to the third and fourth contentions, the Board believes that the Statement of the Case and the above discussion provide adequate reasons and bases for its denial, and inform the veteran of the elements necessary to well ground his claim in the future. The veteran is not entitled to the benefit of the doubt in resolving his claim because he has not submitted a well-grounded claim. Should he submit a well-grounded claim in the future, 38 C.F.R. § 3.102 will be triggered. ORDER Evidence of a well-grounded claim not having been submitted, entitlement to service connection for a stomach disorder is denied. REMAND In October 1999, the RO denied, in pertinent part, the veteran's claim for service for a back disorder. In December 1999, the RO forwarded to the Board a notice of disagreement signed by the veteran, which disputed the RO's October 1999 denial of his back claim. To date, the RO has not issued a Statement of the Case in response to the veteran's letter. The failure to issue a Statement of the Case in such a circumstance renders a claim procedurally defective and necessitates a Remand. Godfrey v. Brown, 7 Vet.App. 398, 408-10 (1995); see also Archbold v. Brown, 9 Vet.App. 124, 130 (1996). After the RO has been given the opportunity to cure such a defect, the claim will be returned to the Board only if the veteran perfects his appeal in a timely manner. Smallwood v. Brown, 10 Vet.App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet.App. 361, 374 (1997) ("absent an NOD, an SOC and a Form 1-9 [substantive appeal], the BVA was not required--indeed, it had no authority--to proceed to a decision") (citation omitted). Appellate consideration of the veteran's back claim is deferred and this claim is remanded to the RO for the following development: The RO should furnish the veteran and his representative a Statement of the Case addressing the issue of entitlement to service connection for a back disorder, and afford them an opportunity to perfect an appeal of the RO's denial of this issue by submitting a substantive appeal in response thereto. The RO should advise the veteran that the claims file will not be returned to the Board for appellate consideration of his back claim following the issuance of the Statement of the Case unless he perfects his appeal. The purpose of this REMAND is to afford the veteran due process of law, and the Board does not intimate any opinion, favorable or unfavorable, as to the merits of the veteran's back claim. The veteran is free to perfect his appeal of the denial of this issue and to submit any additional evidence he wishes to have considered in connection with this appeal. However, he is not obligated to act unless otherwise notified. STEVEN L. COHN Member, Board of Veterans' Appeals