Citation Nr: 0003694 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 93-10 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a stomach disability other than residuals of cholecystectomy, including peptic ulcer disease with gastroesophageal reflux. 2. Entitlement to a compensable evaluation for the residuals of cholecystectomy. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from October 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Reno, Nevada, regional office (RO) of the Department of Veterans Affairs (VA). In March 1995, the Board determined that new and material evidence to reopen claims of service connection for skin and stomach disabilities had been presented, and remanded the case to the RO for further development to be followed by a de novo review of both issues. Following the de novo review, the RO granted service connection for the residuals of acne and the residuals of gallbladder removal (cholecystectomy) in April 1996. A zero percent evaluation was assigned for each disability. Subsequently, the veteran expressed disagreement with the evaluations of these disabilities. The evaluation for the residuals of acne was increased to 10 percent in a July 1996 rating decision. The veteran continued to express disagreement with this evaluation. This matter was returned to the Board in July 1997. The Board remanded the case for additional development. The issues were returned to the Board in September 1998. The requested development pertaining to the issue of entitlement to an increased rating for acne was completed, and the Board denied entitlement to an evaluation in excess of 10 percent. The issues of entitlement to service connection for a stomach disability and entitlement to an increased rating for the residuals of cholecystectomy were remanded for more development. They have now been returned for further appellate review. The issue of entitlement to a compensable evaluation for the residuals of cholecystectomy will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. In a January 1999 addendum to a September 1997 VA examination, the examiner diagnosed the veteran's current disability as lactose deficiency. 2. The service medical records show that the veteran was treated on many occasions for complaints of stomach pain. 3. In the January 1999 addendum to the September 1997 VA examination, the examiner opined that the veteran's current lactose deficiency is a continuation of the disability that was manifested during active service. CONCLUSION OF LAW The claim of entitlement to service connection for a stomach disability other than residuals of cholecystectomy, including peptic ulcer disease with gastroesophageal reflux, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he developed a stomach disability during active service. He believes that his disability was misdiagnosed, and that the treatment administered to him during service caused his disability to become worse. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. If a gastric or duodenal (peptic) ulcer becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of an ulcer during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In this case, the veteran's service medical records show treatment for complaints of stomach pain on many occasions. In a January 1999 addendum to a September 1997 VA examination, the examiner states that the veteran is currently suffering from lactose deficiency. He adds that it appears the veteran's symptoms were manifested during active service, and that his current disability is a continuation of that process. Therefore, as the evidence shows that the veteran was treated for a stomach disability in service, as he has currently been diagnosed as having lactose deficiency, and as medical opinion has related the veteran's current disability to active service, the veteran's claim is well grounded. ORDER The claim of entitlement to service connection for a stomach disability other than residuals of cholecystectomy, including peptic ulcer disease with gastroesophageal reflux, is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for a stomach disability other than residuals of cholecystectomy, including peptic ulcer disease with gastroesophageal reflux, is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Following the September 1998 remand, a January 1999 addendum to the September 1997 VA examination was obtained. The examiner opined that the veteran's current disability was lactose deficiency. This was noted to be an inborn process that did not usually become manifest until adolescence or shortly thereafter. It was added that it appeared the veteran never had a peptic ulcer, but that his lactose deficiency had first become apparent during service, and that his current condition was a continuation of the lactose deficiency. The opinion contained in the January 1999 addendum has raised additional questions that must be addressed prior to reaching a final decision in this case. As noted by the RO, congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation, and service connection may not be established for these defects. 38 C.F.R. § 3.303(c). However, the Board notes that the General Counsel of the VA outlined certain exceptions to this regulation in VAOPGCPREC 82-90 (O.G.C. Prec. 82-90). This opinion notes that there is a distinction between congenital defects, and congenital or familial diseases. In the case of a disease process, it is possible that it could be aggravated during active service. The Board finds that the veteran should be afforded an additional examination, and a medical opinion must be obtained to determine whether or not his "inborn" lactose deficiency is considered a congenital or developmental defect or disease process. If it is a congenital or developmental disease process, the examiner should indicate whether or not it had its onset or increased in severity during active service. In addition, the veteran's representative contends that the development requested by the September 1998 remand for the issue of entitlement to a compensable evaluation for the residuals of cholecystectomy has not been completed. The veteran's claims folder was to be returned to the examiner who conducted the September 1997 VA examination, in part so that he could indicate whether or not the residuals of cholecystectomy were nonsymptomatic or, if symptomatic, whether they were manifested by mild or severe symptoms. This development was not completed. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that the veteran should again be scheduled for an additional examination to determine the severity of the residuals of his cholecystectomy. For the reasons cited above, these issues must again be remanded to the RO for the following action. 1. The veteran should be afforded an additional gastrointestinal examination. The claims folder must be made available to the examiner for use in the study of this case. All indicated tests and studies should be conducted. After the examination and review of the medical history contained in the claims folder, the examiner should then provide an opinion as to the following: 1) Does the veteran currently exhibit a lactose deficiency, and if so, is it considered to be a congenital or developmental defect or disease process? 2) If the veteran's lactose deficiency is determined to be a congenital or developmental disease process, did it have its onset in service or, if it preexisted service, was there a pathological worsening of the disease during service, and, if so, was the increase due to the natural progress of the disease? 3) Are the residuals of the veteran's cholecystectomy nonsymptomatic, or are they manifested by mild or severe symptoms which, if present, should be identified. The rationale for all conclusions and opinions expressed should be provided. Any consultations with other specialists deemed necessary for a comprehensive evaluation should be obtained. The examiner should state in the examination report that the pertinent evidence in the claims file, including the service medical records, was reviewed. The examiner should be provided with a copy of this remand to ensure that the pertinent questions are addressed. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal for which a notice of disagreement has been filed remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. THOMAS J. DANNAHER Member, Board of Veterans' Appeals