Citation Nr: 0007361 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 94-39 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for a nervous disorder. 2. Entitlement to service connection for bone deficiency. 3. Entitlement to service connection for diverticulosis. 4. Entitlement to an increased rating for bronchial asthma, currently evaluated as 60 percent disabling. ATTORNEY FOR THE BOARD Daniel R. McGarry INTRODUCTION The veteran had active service from November 1955 to October 1957. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in which the regional office (RO) denied entitlement to service connection for a nervous disorder, a bone disorder claimed as bone deficiency, and diverticulosis, and denied an increased rating for bronchial asthma. FINDINGS OF FACT 1. The record contains no evidence that the veteran had a nervous disorder, a bone disorder, or diverticulosis during his active military service. 2. The record contains no competent medical evidence of a nexus between the veteran's claimed current disability from a nervous disorder, a bone disorder, or diverticulosis and any disease or injury he incurred during his active military service. CONCLUSION OF LAW The claims of entitlement to service connection for a nervous disorder, a bone disorder, and diverticulosis are not well grounded. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Also, 38 U.S.C.A. §§ 1101, 1110, 1112, and 1137 provide that where a veteran has served 90 days or more during a period of war or after December 31, 1946, and develops a psychosis to a degree of disability of 10 percent or more within one year of separation from such service, such disease shall be presumed to have been incurred in service. The law provides that "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." 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim is a plausible claim which is meritorious on its own or is capable of substantiation. See Murphy v. Derwinski, Vet. App. 78, 81 (1990). The three elements of a well-grounded claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element, the kind of evidence to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required. Id. at 93. For the reasons discussed below, the Board finds that the veteran's claims of entitlement to service connection for a nervous disorder, a bone disorder, and diverticulosis are not well grounded. Although the RO did not specifically state that it denied the veteran's claims on the basis that they were not well grounded, the Board concludes that this error was harmless. See Edenfield v. Brown, No 92-1263 (U.S. Vet. App. Nov. 1, 1995) (en banc) (deciding that the remedy for the Board's deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error). While the RO denied service connection on the merits, the Board concludes that dismissing the appeal because the claim is not well grounded is not prejudicial to the appellant, as the appellant's arguments concerning the merits of the claim included, at least by inference, the argument that sufficient evidence to establish a well-grounded claim is of record. Moreover, the claimant may file an additional claim for service connection for the cause of the veteran's death in the future without the additional burden of filing new and material evidence to reopen the claim. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claim is or is not well grounded. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); VAOPGCPREC 16- 92 (O.G.C. Pres. 16-92) at 7-10. Where a claim is not well grounded it is incomplete, and VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). In this case, the RO informed the appellant of the necessary evidence in the claims form he completed, in its notice of rating decision dated in April 1991, and in the statement of the case and the supplemental statements of the case. The discussion below informs the veteran of the types of evidence lacking, and which he should submit for well grounded claims. VA outpatient and hospital treatment records indicate that the veteran has current disability from adjustment disorder and may have disability from diverticulosis. The record contains no evidence which indicates that the veteran has a bone disorder. Service medical records contain no indication that the veteran incurred a nervous disorder, bone disorder, or diverticulosis during his active military service. The record contains no indication that the veteran developed a psychosis to compensable degree of disability within one year of his separation from service. A thorough review of the record yields no indication of competent medical evidence or opinion of a nexus between current disability from a nervous disorder, a bone disorder, or diverticulosis and any disease or injury the veteran incurred during his active military service. In the absence of such evidence, the Board concludes that the claims for service connection for a nervous disorder, a bone disorder, and diverticulosis are not well grounded. ORDER The claims for service connection for a nervous disorder, bone deficiency, and diverticulosis are denied. REMAND The schedule for rating disability of the respiratory system was amended effective October 7, 1996. 612 Fed. Reg. 46720- 46731 (1996). The RO has considered the veteran's disability from bronchial asthma under both the former and revised rating criteria for respiratory disorders. Under the revised rating criteria, a 100 percent rating is assigned for pronounced bronchial asthma where daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required. 38 C.F.R. § 4.96, Diagnostic Codes 6602 (1999). The veteran's claim for an increased rating for bronchial asthma has been pending since December 1990. During the 1993 VA examination, the examiner noted that the veteran had been taking high doses of Prednisone. During the September 1999 examination, the veteran reported that he had used Prednisone daily in the past but this was tapered down, and had been discontinued two years prior to the examination. To complete the record, it is necessary to determine during whether the veteran's treatment of bronchial asthma has required daily, high dose use of systemic corticosteroids and, if so, during what period(s). The most recent treatment records contained in the claims folder are dated in 1993. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for bronchial asthma since 1993. The RO should take all necessary steps to obtain any pertinent records which are not currently part of the claims folder and associate them with the claims folder. 2. After the development requested above has been completed to the extent possible, the RO should again review the record and re-evaluate the veteran's disability from bronchial asthma. The RO should determine whether the revised regulations pertinent to evaluation of respiratory disorders are more or less favorable to the veteran than the former regulations, and should evaluate the veteran's disabilities under the more favorable regulation. 3. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental SOC which contains both the revised and the former regulations and they should be 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 appellant need take no action unless otherwise notified. The appellant 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 Veterans Appeals 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. MARY GALLAGHER Member, Board of Veterans' Appeals