Citation Nr: 0004743 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 97-06 557A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for diverticulosis. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from December 1970 to August 1975. This matter comes to the Board of Veterans Appeals (Board) from a December 1996 rating decision of the Regional Office (RO) which, in pertinent part, denied the veteran's claim for service connection for diverticulosis. When this case was before the Board in July 1999, it was remanded for additional development of the record. This case is again before the Board for appellate consideration. The Board notes that a number of claims were resolved in its July 1999 decision. In addition to the issue now before the Board, the veteran's claim for a permanent and total disability rating for pension purposes was also remanded. Based on the additional evidence received, the RO, in a November 1999 rating action, granted the claim. Therefore, this decision is limited to the issue noted on the cover page. Effective March 1, 1999, the name of the United States Court of Veterans Appeals was changed to the United States Court of Appeals for Veterans Claims ("the Court"). FINDINGS OF FACT 1. The service medical records are negative for complaints or findings of diverticulosis. 2. Diverticulosis was initially documented many years after service, and there is no competent medical evidence linking it to service. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for diverticulosis. 38 U.S.C.A. § 5107(West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5107 (a), "A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim." Clearly, the duty to assist a claimant arises only if a well-grounded claim has been submitted. While it appeared that the claims were well grounded when this case was previously before the Board in July 1999, upon further review and the evolving case law of the Court, it must now be concluded that the claim is not well grounded. The Court has defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [51]07(a). Murphy v. Derwinski,1 Vet. App. 78, 81 (1990). The Court has also held that while "the claim may not be conclusive, the statute provides that it must be accompanied by evidence." Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In this case the evidence in support of the veteran's claims consists of medical reports and his statements on his own behalf. As the Court has held, lay persons are not competent to render medical opinions and where the determinative issue is one of the medical causation, competent medical evidence is required to the effect that the claim is plausible or possible in order to show that the claim is well grounded. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 93 (1993). No such evidence has been submitted in this case. In Morton v. West, 12 Vet. App. 477 (1999), the Court made clear that the Department of Veterans Affairs (VA) has no duty to assist a veteran in the absence of a well-grounded claim. Factual background The service medical records reveal that the veteran was seen in December 1971 for vomiting and diarrhea. Medication was prescribed. He reported diarrhea of two hours duration in June 1972. He had no nausea or vomiting, and there was no abdominal pain. Medication was prescribed, and he was advised to return to the clinic as necessary. The abdomen and viscera were evaluated as normal on the separation examination in July 1975. The veteran was admitted to a VA hospital in September 1984. He underwent a flexible sigmoidoscopy. Physical findings were essentially within normal limits. Nurse's notes during the hospitalization reflect that the veteran stated that he had been having diarrhea at intervals for several years. The diagnosis was diverticula. VA outpatient treatment records show that the veteran was seen in December 1984. It was reported that an X-ray showed diverticulosis. A VA intestinal examination was conducted in September 1996. The veteran related that he had some diarrhea, but that he was doing better since the surgery the previous month. Prior to that time, he had several bouts of diarrhea daily. The diagnosis was status post ruptured colon with surgical repair. It was noted that the veteran was still in the recovering stages from the surgery, with a long history of diverticulosis. A VA general medical examination was conducted in September 1996. Following an examination, the diagnosis was diverticulosis associated with pain and discomfort. During a VA Agent Orange examination in September 1996, the veteran complained of chronic diarrhea over the previous twenty years. It was noted that he had a history of a colostomy in February 1996 following a rupture of the colon, and several additional operations. The diagnosis was diverticulosis and status post ruptured colon, with resultant surgical repair. VA outpatient treatment records show that the veteran reported a history of six surgeries between February 1995 and February 1996. In December 1998, the veteran stated that he had a history of chronic diarrhea since the 1970's. the examiner could not get a history of clear-cut blood or mucus production. Analysis Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1999). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestations of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The Board concedes that the veteran was treated on a few occasions during service for complaints including diarrhea. It is significant to point out, however, that there is no indication in the service medical records that the veteran had diverticulosis. The separation examination was negative for pertinent abnormality. The Board notes that the initial indication of diverticulosis was following a September 1984 VA hospitalization, approximately nine years after the veteran was discharged from service. Notes recorded during the hospitalization indicate that the veteran had been having diarrhea at intervals for only several years. No clinical evidence has been submitted which would link the diverticulosis found many years after service to the veteran's service. The veteran's statements to the effect that diverticulosis is related to service provide the only support for his claim. The Court has held that if the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit, 5 Vet. App. 91. Since the veteran is not a medical expert, he is not competent to express an authoritative opinion regarding either his medical condition or any questions regarding medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, his lay assertions to the effect that he has diverticulosis which is related to service are neither competent nor probative of the issue in question. Indeed, in Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions and, therefore, those opinions do not even serve as a basis for a well-grounded claim. ORDER Service connection for diverticulosis is denied. James R. Siegel Acting Member, Board of Veterans' Appeals