BVA9500315 DOCKET NO. 93-05 993 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a hiatal hernia. 2. Entitlement to service connection for hypertension claimed as secondary to a service-connected psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from June 1944 to June 1946. In a September 1985 appellate decision, the Board of Veterans' Appeals (Board) denied entitlement to service connection for hypertension, finding that it had not been incurred in service and that it could not be presumed to have been incurred in service. The Board notes that the appellant's July 1992 statement to the Board indicates that he is not attempting to reopen the claim for service connection for hypertension as having been incurred during service. Rather, he claims entitlement to service connection for hypertension on a secondary basis by asserting that his hypertension is proximately due to or the result of his service-connected post-traumatic stress disorder (PTSD). The Board notes that a rating decision in November 1985 denied service connection for hypertension as secondary to PTSD; however, the appellant was not given notice of this determination and it did not become final. This matter comes before the Board on appeal from an April 1991 rating decision and an April 1992 rating decision of the Department of Veterans Affairs (VA) Seattle, Washington, Regional Office (RO), which denied entitlement to service connection for a hiatal hernia, and a December 1992 rating decision, which denied entitlement to service connection for a hiatal hernia and hypertension, the latter claimed as having developed as a result of PTSD. Review of the claims file indicates that the appellant may also be seeking entitlement to an effective date earlier than March 22, 1991, for a 70 percent evaluation for service-connected PTSD. This claim is not inextricably intertwined with the current claims and has not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant is claiming service connection for a hiatal hernia. He claims that treatment for a hiatal hernia was not indicated in service because his hiatal hernia developed subsequent to service as a result of his service-connected PTSD. He also asserts that he is entitled to secondary service connection for hypertension because it is a direct result of chronic stress that is due to his service-connected PTSD. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims of entitlement to service connection for a hiatal hernia and hypertension are well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant's service medical records show no complaint or manifestation of a hiatal hernia. 3. Although there is medical evidence of record indicating that the appellant was diagnosed as having a hiatal hernia in January 1988, more than 41 years after his separation from service, no objective evidence has been submitted indicating that the disorder is related to service, or is due to any in-service occurrence or event. 4. The medical evidence of record indicates that the appellant was treated for hypertension in 1971, more than 24 years after his separation from service; no objective evidence has been submitted indicating that the disorder is related to service, or is due to any in-service occurrence or event. CONCLUSIONS OF LAW 1. The appellant has not submitted a well-grounded claim for service connection for a hiatal hernia. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1994). 2. The appellant has not submitted a well-grounded claim for secondary service connection for hypertension. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). The threshold question to be answered at the outset of the analysis of any issue is whether the appellant's claim is well- grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a claim is not well- grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). A veteran has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). I. Service Connection for a Hiatal Hernia In this case, the evidentiary assertions as to the claim of service connection for a hiatal hernia, either as having been incurred during service or having developed subsequent to service as a result of the appellant's service-connected PTSD, are inherently incredible when viewed in the context of the total record. The appellant's June 1946 separation physical examination revealed a normal abdominal wall and viscera, with no evidence of hernia. Review of the claims file indicates that the first mention of a hernia was in a December 1980 statement from R. E. Nellans, M.D., wherein he referred to the appellant as having had a diagnosis of bilateral inguinal hernias. In an April 1981 statement, R. E. Nellans, M.D., recommended that the appellant not undergo surgical repair of his bilateral inguinal hernias, unless he became more symptomatic. In May 1981, R. E. Nellans, M.D., reevaluated the appellant and it was decided that he would proceed with repair of the bilateral inguinal hernias. A hiatal hernia was mentioned as a diagnosis at his VA psychiatric evaluation examinations for PTSD conducted in January 1988 and March 1990. The appellant raised the issue of entitlement to service connection for a hiatal hernia in a March 1991 statement to the Board. A January 1992 air contrast upper gastrointestinal series, performed by B. D. Leyton, M.D., radiologist, confirmed the diagnosis of a large sliding hiatal hernia. A June 1992 VA examination noted that the hiatal hernia was probably a separate issue and not related to the appellant's service-connected PTSD. A December 1992 VA physician's statement concluded that the hiatal hernia was an anatomical abnormality, and that it was not caused by the appellant's psychophysiological disorder, i.e., PTSD. To establish service connection there needs to be a showing that the disability for which service connection is sought is, in some way, related to service. No such showing has been made as to the appellant's hiatal hernia. There is clinical evidence indicating that a hiatal hernia was first shown more than 40 years following the veteran's separation from service, and there is nothing in the clinical evidence that suggests the hernia is etiologically related to military service or any of his service-connected disabilities. A VA physician specifically reported that the hiatal hernia was not caused by the appellant's psychophysiological disorder. The veterab has failed to provide any clinical evidence of a relationship between his hiatal hernia and any incident of service, including a service-connected disability. Even though the appellant now has a hiatal hernia, without objective evidence of medical causality relating it to service or to a service-connected disability, the claim is not well- grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994). The Board understands that the appellant believes that his hiatal hernia is causally related to his service-connected PTSD; however, he lacks the medical expertise to enter an opinion regarding a causal relationship between this disorder and any claimed secondary relationship to his service-connected disabilities. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93, (1993). Where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Id. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or an in-service event or occurrence, or where the disorders are not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). III. Service Connection for Hypertension claimed as secondary to PTSD In this case, the evidentiary assertions as to the claim of secondary service connection for hypertension incurred as a result of the appellant's service-connected PTSD are inherently incredible when viewed in the context of the total record. Service medical records showed no complaint or finding of hypertension. An October 1971 statement from D. C. Tanner, M.D., indicated treatment of the appellant for hypertension. A September 1981 VA examination indicated that the appellant originally had problems and sought treatment for hypertension in 1970, more than 24 years after separation from service. The physician indicated that the hypertension was under control with medications. A September 1985 Board decision denied entitlement to direct service connection for hypertension and, in July 1992, the appellant asserted that he was entitled to secondary service connection for hypertension because it was a result of chronic stress that was due to his service-connected PTSD. A June 1992 VA examination disclosed, as history, that the appellant had been diagnosed with hypertension in 1970. The physician reported that the appellant had not experienced any complications from the disease, and, upon examination, his blood pressure was 130/80. A December 1992 VA physician's statement concluded that the hypertension was mild and well controlled with medication, and that there was no evidence that it was caused, or made more difficult to control, because of the appellant's psychophysiologic disorder. As noted above, to establish service connection there needs to be a showing that the disability for which service connection is sought is, in some way, related to service. No such showing has been made as to the appellant's hypertension. There is nothing in the clinical evidence that suggests his hypertension is etiologically related to any of his service-connected disabilities. He has failed to provide any clinical evidence of a relationship to a service-connected disability. Therefore, even though the appellant now has hypertension, there is no objective evidence of medical causality, and as such, the claim is not well-grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994). The Board understands that the appellant believes that his hypertension is causally related to his service-connected PTSD; however, he lacks the medical expertise to enter an opinion regarding a causal relationship between this disorder and any claimed secondary relationship to his service-connected disabilities. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well- grounded. Grottveit v. Brown, 5 Vet.App. 91, 93, (1993). Where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Id. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or an in-service event or occurrence, or where the disorders are not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). IV. Additional Discussion The United States Court of Veterans Appeals (the Court) has expressed its concern that, in a situation in which the claim is not well-grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if he can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994) not attach to the rating decisions in April 1991, April 1992 and in December 1992, as they pertain to the claim of service connection for a hiatal hernia, nor attach to the rating decision in December 1992 as it pertains to entitlement to service connection for hypertension claimed as secondary to PTSD. ORDER Well-grounded claims for service connection for a hiatal hernia and for service connection for hypertension, claimed as secondary to PTSD, not having been submitted, the claims are dismissed, and the rating actions of April 1991, April 1992 and December 14, 1992, are vacated insofar as they pertain to those issues. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been so assigned. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.