Citation Nr: 0000200 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-10 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a sinus disorder. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a liver disorder. 5. Entitlement to service connection for a pulmonary disorder. 6. Entitlement to service connection for arthritis of multiple joints. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.D. Jackson, Counsel INTRODUCTION The veteran had active service from February 1955 to February 1957. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACTS 1. The veteran has not submitted competent medical evidence that his sinus disorder is related to service. 2. The veteran has not submitted competent medical evidence that his hypertension is related to service. 3. The veteran has not submitted competent medical evidence that his back disability is related to service. 4. The veteran has not submitted competent medical evidence that his liver disorder is related to service. 5. The veteran has not submitted competent medical evidence that his pulmonary disorder is related to service. 6. The veteran has not submitted competent medical evidence that arthritis of multiple joints is related to service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a sinus disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for hypertension is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for a back disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim of entitlement to service connection for a liver disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The claim of entitlement to service connection for a pulmonary disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 6. The claim of entitlement to service connection for arthritis of multiple joints is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he currently suffers from several disabilities that had their inception in service. These disabilities include a sinus condition, arthritis of multiple joints, hypertension, a back condition, a liver condition and a pulmonary disorder. A veteran who submits a claim for benefits to the VA shall have the burden of offering sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). 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 the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467- 68 (Fed. Cir. 1997). The veteran must demonstrate three elements to establish that a claim is well grounded. First, the veteran must present medical evidence of a current disability. Second, the veteran must produce medical or, in some instances, lay evidence of an in-service incurrence or aggravation of a disease or injury. Finally, the veteran must offer medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Epps, 126 F.3d at 1468- 69. A veteran 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 the 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). It should be noted that the veteran's service medical records are not available. The RO has attempted on several occasions to gather these records; however, these attempts have been futile. When service medical records are unavailable, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule under 38 U.S.C.A. § 5107(b) (West 1991) is heightened. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Concerning the first element - evidence of current disability as provided by a medical diagnosis - private hospital records dated in November 1985 show a diagnosis of epistaxis secondary to severe chronic and acute sinusitis. An X-ray study of the chest performed during that hospital stay also revealed ankylosis of the dorsal spine. A January 1993 private hospital summary included diagnoses of pneumonia, chronic obstructive pulmonary disease (COPD), and ethanol abuse with probable alcoholic liver disease. VA outpatient records dated in January 1996 reflect a diagnosis of hypertension. A September 1996 private radiological report revealed degenerative changes involving the dorsal and lumbar segments of the spine. Concerning the second element - evidence of incurrence or aggravation of a disease or injury in service - in the June 1998 VA Form 9, the veteran asserts that he received treatment for severe sinus condition at Camp Chaffee, Arkansas, during basic training. He also indicated that he received further medical care while he was on leave at home in 1955. In his 1996 VA application for benefits he also indicated that he received back treatment in 1955. In regards to the remaining disabilities, the veteran has failed to state specifically when the onset of these disabilities began. Although service medical records for the period of February 1955 to February 1957 are unavailable, the Board will presume that he received treatment for these disorders in service, only for the purpose of determining whether his claims are well grounded. See King v. Brown, 5 Vet. App. 19, 21 (1993). Incidentally, it should be noted that there are no records of post service treatment for the claimed disabilities until the mid-1980's, when the private diagnosis of acute sinusitis was recorded. Importantly, this was over 25 years after service discharge. Cf. Mense v. Derwinski, 1 Vet. App. 354 (1991) (veteran failed to provide evidence of continuity of symptomatology of low back condition). Nevertheless, the veteran's problem with presenting well- grounded claims arises with the third element. While the Board finds these records sufficient to show that the veteran is currently suffering from the claimed disabilities, they do not, however, link the veteran's disabilities to his period of active service. Beyond the veteran's assertions, there is no evidence of record linking the disabilities to the veteran's period of active service. The veteran's assertions are insufficient to satisfy the nexus requirement because the veteran is a layperson with no medical training or expertise to determine medical causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). As the veteran has not submitted competent medical evidence of a nexus between his disabilities and period of active service, his claims must be denied as not well grounded. Epps, 126 F.3d at 1467-68. The Board views its discussion as sufficient to inform the veteran of the elements necessary to well ground his claim and to explain why his current attempt fails. The Board notes that the veteran's representative has requested that the Board consider several additional issues, including entitlement to a total rating based on individual unemployability; entitlement to temporary total ratings based on 38 C.F.R. §§ 4.29 and 4.30; entitlement to secondary service connection; entitlement to special monthly compensation based on the need for aid and attendance or at the housebound rate; and entitlement to a 10 percent rating based on multiple noncompensable disabilities under 38 C.F.R. § 3.324. However, VA has no duty to assist the veteran until the veteran meets his burden of establishing a well-grounded claim. Morton v. West, 12 Vet. App. 477 (1999). ORDER A well-grounded claim not having been submitted, service connection for a sinus disorder is denied. A well-grounded claim not having been submitted, service connection for hypertension is denied. A well-grounded claim not having been submitted, service connection for a back disability is denied. A well-grounded claim not having been submitted, service connection for a liver disorder is denied. A well-grounded claim not having been submitted, service connection for a pulmonary disorder is denied. A well-grounded claim not having been submitted, service connection for arthritis of multiple joints is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals