Citation Nr: 0000066 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 97-11 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for malaria. 2. Entitlement to service connection for stomach ulcers. 3. Entitlement to service connection for umbilical hernia. 4. Entitlement to service connection for prostatic hyperplasia. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from August 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) from a January 1997 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. There is no competent evidence that the veteran currently has malaria. 2. There is no competent evidence that the veteran currently has stomach ulcers. 3. Umbilical hernia clearly and unmistakably pre-existed service and there is no competent evidence that the pre- existing umbilical hernia underwent a permanent increase in disability during service. 4. There is no competent evidence of a nexus between prostatic hyperplasia and exposure to herbicides or any other incident in service. CONCLUSION OF LAW The claims of entitlement to service connection for malaria, stomach ulcers, umbilical hernia, and prostatic hyperplasia are not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's August 1965 examination for enlistment into service noted umbilical hernia. Service medical records are negative for complaints, treatment, or diagnoses of malaria, stomach ulcers, or prostatic hyperplasia. The record is also negative for complaints or treatment for umbilical hernia. The veteran's 1967 separation examination showed normal clinical evaluations. Private records dated in January 1996 show that the veteran was seen with complaints of some urgency, frequency of urination, and occasional incontinence. Urinalysis examination was normal. During a follow-up examination, it was noted that the veteran's urinary symptoms were totally abated. His prostate was normal. He was unable to produce a urine sample. The veteran was accorded a VA genito-urinary examination in August 1999. It was reported that the veteran had a history of stomach ulcer. At that time, he complained of nocturia, frequency, as well as urgency. On examination, the abdomen was soft, nontender, nondistended, with no masses. The umbilical hernia was easily reducible. The prostate was approximately 40 grams, smooth, nontender, with no nodules. The impression was a history of peptic ulcer disease and symptoms consistent with benign prostatic hyperplasia. The examiner opined that the veteran's benign prostatic hyperplasia was a very common disorder in men over the age of 50 and was not related to service. The veteran was accorded a VA stomach, duodenum and peritoneal adhesions examination in August 1999. At that time, he reported that he contracted malaria in 1966 and was treated in the field hospital for twelve days. There was no reoccurrence. Following his discharge from service, the veteran reported that he experienced high fever in 1968, but did not seek medical treatment. He also reported that in 1975, he was seen by a private physician who suspected peptic ulcer disease. He reported that he underwent a workup, including upper gastrointestinal series and upper endoscopy. He reported that his last follow-up was in 1996 at which time he was told, "it was all healed." However, he reported that occasionally he experienced stomach cramps when waiting too long to eat or after eating spicy food. He reported that he used Maalox and Prepulsid. There was no reported nausea or vomiting. He declined to undergo an upper gastrointestinal series. Finally, the veteran reported that in 1969, he was found to have an enlarged prostate gland. A biopsy was not conducted. He recalled that his blood test was normal. He reported that on occasions he could not empty his bladder and experienced some frequency but no nocturia. On examination, the abdomen was soft, benign, with no organomegaly or remarkable tenderness noted. There was a small asymptomatic umbilical hernia noted, the size of a nickel. There were no inguinal hernias noted. The examiner noted that the veteran appeared asymptomatic. The impressions were history of malaria without recurrence, no history of chronic malaria; history of peptic ulcer disease; prostate hyperplasia by history. The examiner reported that none of the veteran's conditions were related to Agent Orange exposure. Pertinent Law and Regulations In any claim for VA benefits, the initial question is whether the claim is well grounded. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is a "plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only plausible to satisfy the initial burden of § [5107]." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If not, the claim must be denied and there is no further duty to assist the veteran with the development of evidence pertaining to that claim. See Epps v. Gober, 126 F. 3d. 1464, 1468 (1997); 38 U.S.C.A. § 5107(a). In order for a claim for service connection to be well grounded, there must be: (1) competent evidence of a chronic disability (a medical diagnosis); (2) evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence, depending on the circumstances); and (3) evidence of a nexus between the inservice injury or disease and a current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.306. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the evidence must demonstrate the existence of a current disability and a causal relationship between the disability and military service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b). If so, the claim is denied; if the evidence is in support of a claim or is in relative equipoise, the claim is allowed. Id. If, after careful review of all the evidence, a reasonable doubt arises regarding service connection, such doubt will be resolved in favor of the veteran. See 38 C.F.R. § 3.102 (1999). Under the provisions of 38 C.F.R. § 3.303(b), 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 manifestation of joint pain, any abnormality of heart action or heart sounds in service permits service connection for arthritis or other disabilities, 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, 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. The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or during any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Malaria The veteran contends that he has malaria or residuals thereof. This contention, however, is not supported by any competent medical evidence. Where a question is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, may constitute sufficient evidence to establish a well grounded claim; however, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well-grounded. See Grottveit v. Brown, 5 Vet. App. 93. There is no competent evidence of this condition during the veteran's period of service, and there is no competent evidence of current malaria or residuals thereof. In order to satisfy the requirement of a current disability, there must be competent evidence that the disability is symptomatic at the time of application for service connection. Gilpin v. West, 155 F.3d 1353, 1355-6 (Fed. Cir. 1998). In this case there is no evidence of malaria or residuals thereof at the time of the veteran's current claim or thereafter. In the absence of competent evidence of current disability, the claim is not well grounded. The benefit sought on appeal is accordingly denied. Stomach ulcers While peptic ulcers (gastric or peptic) are considered chronic diseases within the meaning of 38 C.F.R. § 3.307(a), there is no competent evidence that peptic ulcers were present during service or within one year following separation from service. The veteran has asserted that he was treated for peptic ulcer disease in service. However, as a lay person the veteran would not be competent to offer such a diagnosis. Thus there is no competent evidence of the incurrence of peptic ulcer disease in service. There is also no competent evidence of peptic ulcer disease within the one-year presumptive period after service. The veteran has reported that he was diagnosed with stomach ulcers in 1975, approximately seven years after service. There is also no competent evidence of current peptic ulcer disease. On recent VA examinations peptic ulcer disease was noted only by history. Assuming that the veteran was treated for stomach ulcers in 1975, such treatment would not constitute competent evidence of current disability. The Board notes that private medical records dated in 1996 report the veteran's history of treatment for peptic ulcer. However, those records do not show current disability. As noted above, the requirement for a showing of current disability, means that there be competent evidence of the claimed disability at the time of claim and not at some time in the distant past, albeit at a time after service. Gilpin. In order for the claim for service connection to be well grounded, there must be competent evidence that the veteran currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no such evidence in this case. In the absence of competent evidence of ulcer disease in service, within one year of service, or currently; the claim for stomach ulcers is not well grounded and must be denied. 38 U.S.C.A. §§ 1110, 5107(a). Umbilical hernia A review of the service medical records reflects that, at the time of enlistment examination in August 1965, notation was made of umbilical hernia- not considered disabling. The service medical records are negative for any complaints or treatment regarding the umbilical hernia. Umbilical hernia was not noted at the time of separation examination in August 1967, thus no indication that it had been aggravated in any way by the veteran's active service. A veteran is presumed to be in sound condition when examined and accepted into service, except for defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment for service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance or enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 1991). In the instant case, notation of umbilical hernia was made at the time of the veteran's examination for entrance into service. Thus the presumption of soundness is not for application. In order for the veteran's claim to be well grounded, there must be competent evidence that the pre-existing disability was aggravated in service. Maxson v. West, 12 Vet. App. 453 (1999). The umbilical hernia was not considered disabling at the time of the examination for entrance into service. Inasmuch as the veteran received no documented treatment for umbilical hernias in service, and the condition was not reported on the examination for separation from service, there is no evidence that the condition increased in severity during service. Aggravation of a pre-existing condition cannot be conceded where there is no evidence that the disability underwent an increase during service. 38 C.F.R. § 3.306(a). The Board also notes that on the recent VA examination, the veteran's umbilical hernia was found to be asymptomatic. Since there is no competent evidence of aggravation of the pre-existing umbilical hernia the claim is not well grounded and must be denied. The benefits sought on appeal are accordingly denied. Because the veteran's claim for service connection is not well grounded, VA is under no duty to further assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). VA's obligation to inform a claimant of the evidence necessary to render a claim well grounded depends upon the particular facts of the case and the extent to which VA has previously advised the claimant of the evidence necessary to be submitted with a VA benefits claim. 38 U.S.C.A. § 5103(a) (West 1991); See Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Court has recently held that the obligation exists only in the limited circumstances where the veteran has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, the VA is not on notice of any known and existing evidence that would make the service connection claim plausible. The Board's decision serves to inform the veteran of the kind of evidence that would be necessary to make his claim well grounded. Prostatic hyperplasia At the outset, the Board recognizes the veteran's allegation that a prostate disability may have been the result of exposure to Agent Orange while in service. The Board also recognizes that the service administrative records show that, among other things, the veteran received a Vietnam Service Medal with two Bronze Service Stars, National Defense Service Medal Republic of Vietnam Campaign Medal, Combat Infantryman Badge, and Marksman (Rifle). The regulations provide that if a veteran served in Vietnam and developed an Agent Orange presumptive disease to a compensable degree within the requisite time period, the veteran's in-service exposure to Agent Orange may be presumed, notwithstanding there is no record of evidence of such disease during the period of such service. See 38 U.S.C.A. § 1116(a); 38 C.F.R. § 3.309(e). However, in this case, the veteran does not have a disability for which service connection may be presumed under the provisions of 38 U.S.C.A. § 3.309. With regard to the veteran's alleged prostatic hyperplasia, the Board notes that presumptive service connection is available for prostate cancer but not prostatic hyperplasia. As such, the presumption applicable to veteran's exposed to herbicides in Vietnam do not apply. Without the benefit of presumptive service connection, the veteran is obligated to submit an otherwise well-grounded claim. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Velez v. West, 11 Vet. App. 142 (1998); Brock v. Brown, 10 Vet. App. 155 (1997). Where a disease is not specifically mentioned in applicable statute and regulation and when a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease in fact was incurred in service, aggravated by service, or related to service or events from service. 38 U.S.C.A. § 1110; Velez, supra; Combee, supra; 38 C.F.R. § 3.303. As noted above, Section 1154(b) extends special considerations to cases of combat veterans. See Collette v. Brown, 82 F.3d. 389 (Fed. Cir. 1996). In order to establish service connection under Section 1154(b) it must first be determined that the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Satisfactory evidence is evidence sufficient enough to produce a belief that a thing is true, credible evidence. Second, it must be determined that the proffered evidence is consistent with the circumstances, condition, or hardships of such service. If these two criteria are met, a factual presumption arises that the alleged injury or disease is service-connected. With respect to the veteran's prostatic hyperplasia, the service medical records are silent for that condition, and the veteran does not contend that he had the disability in service. He is competent to report that he was exposed to Agent Orange in service. See Pearlman v. West, 11 Vet. App. 443 (1998) (holding that a veteran was competent to report exposure to mustard gas). The veteran is not competent, however, to express the opinion that Agent Orange exposure caused prostatic hyperplasia. See Layno v. Brown, 6 Vet. App. 465 (1995); Horowitz v. Brown, 5 Vet. App. 217 (1993). There is no competent evidence of record linking the claimed disability to Agent Orange exposure in service or to any other incident of service. The only competent evidence consists of the opinion of the August 1999 examiner, who specifically concluded that the veteran's prostatic hyperplasia was not related to military service. To establish a well-grounded claim for entitlement to service connection, there must be evidence of a nexus between the in- service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498. The evidence of record fails to show a nexus between the claimed disability and service. Caluza v. Brown, 7 Vet. App. 498 (1995). Therefore, the claim is not well grounded. Without competent, supporting medical documentation, the veteran's statements fail to meet the burden imposed by section 5107(a). See Grottveit v. Brown. ORDER Service connection for malaria is denied. Service connection for stomach ulcers is denied. Service connection for umbilical hernia is denied. Service connection for prostatic hyperplasia is denied. Mark D. Hindin Member, Board of Veterans' Appeals