Citation Nr: 0006185 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-16 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether the veteran's claim of entitlement to service connection for residuals of jaundice and gallbladder surgery, to include gastrointestinal disability, is well grounded. REPRESENTATION Appellant represented by: AMVETS INTRODUCTION The veteran served on active duty in the United States Navy from May 1964 to January 1966. This appeal arose from an October 1996 decision of the Department of veterans Affairs (VA) Regional Office in Los Angeles, California (the RO) which denied the veteran's the veteran's claim of entitlement to service connection for residuals of jaundice and gallbladder surgery, to include gastrointestinal disability, as not being well grounded. The veteran duly appealed that decision to the Board of Veterans' Appeals (the Board). In her April 1997 substantive appeal (VA Form 9), the veteran requested a personal hearing before a member of the Board at the RO. The RO acknowledged this request in a letter to the veteran in May 1997. In October 1999, the veteran requested that her previous hearing request be withdrawn. FINDINGS OF FACT 1. The medical evidence does not demonstrate any connection between the veteran's December 1965-January 1966 in-service hospitalization due to acute hepatitis and subsequent development of gallstones requiring cholecystectomy in September 1966. 2. The medical evidence does not demonstrate any connection between the veteran's December 1965-January 1966 in-service hospitalization due to acute hepatitis and any current disability, to include gastroesophageal reflux disease. CONCLUSION OF LAW The claim of entitlement to service connection for residuals of jaundice and gallbladder surgery, to include gastrointestinal disability, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking entitlement to service connection for claimed residuals of jaundice and gallbladder surgery. In the interest of clarity, the Board will review the factual background of this case; briefly discuss the relevant law and VA regulations pertaining to the issues on appeal; and then analyze the veteran's claim and render a decision. Factual Background The veteran's service medical records reveal that she was hospitalized for sixteen days in December 1965 and January 1966. She initially sought treatment on December 21, 1965 due to symptoms including lassitude and decreased appetite. Jaundice was identified and the liver was tender to percussion. SGOT was 183. The diagnosis was infectious hepatitis. She was placed on bedrest and medications. Her jaundice cleared rapidly. SGOT on January 4, 1966 was 12. She was "discharged asymptomatic on 6 Jan 66". On physical examination on January 17, 1966, the veteran was noted to be 14 weeks pregnant. She was discharged from the service for that reason on January 19, 1966. On January 22, 1966 the veteran and R.E.G. were married. A number of U.S. Navy Reserve physical examination reports are of record. In general, these indicated that the veteran reported a history of gallbladder disease, stomach trouble and jaundice as well as a cholecystectomy in 1966, at age 21. Physical examinations revealed a scar on the veteran's abdomen but were otherwise pertinently negative. Of note is an October 1988 dental health Questionnaire in which the veteran evidently told the dental officer that she had "hepatitis from gallstones" and that the gallstones were removed in 1966. Of record is a report of a July 1998 fee basis VA examination. The veteran complained of constipation, reflux and cramping of the abdomen. She reported a history of surgery for gallstones in September 1966. On examination, a right upper quadrant scar was noted, as was minimal tenderness in the epigastric area. Laboratory studies were pertinently normal. Diagnoses included status post open cholecystectomy. The examiner stated that the symptoms of heartburn were probably due to gastroesophageal reflux disease. Relevant law and regulations Service connection In general, under pertinent law and VA regulations, service connection may be granted for disability which is attributable to military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be granted on a secondary basis if a claimed disability is found to be proximately due to or is the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Well grounded claims The initial inquiry as to any issue presented on appeal is whether the claim is well grounded. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). A mere allegation of service connection is not sufficient; there must be evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The United States Court of Appeals for the Federal Circuit has held that "a well grounded claim is a plausible claim, one that appears to be meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden § 5107(a). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Analysis The veteran is seeking entitlement to service connection from residuals of jaundice and gallbladder surgery. As indicated above, she was hospitalized for jaundice in December 1995 and January 1966, during service. The veteran is also seeking entitlement to service connection for residuals of gallbladder surgery. It appears that the veteran claims that her currently diagnosed heartburn is related to either or both jaundice or gallbladder surgery. Initial matter As an initial matter, the veteran has indicated that she underwent surgery at a military facility in September 1966 as the dependent of a service member and that medical records pertaining to such surgery are in the possession of the United States Government and should be obtained. The record indicates that the Los Angeles RO made several attempts to locate such records, including contacting the RO in St. Petersburg, Florida in order to ascertain whether such record had been associated with her ex-husband's claims folder. All such attempts have been unavailing. The Board is of course aware of the decision of the United States Court of Appeals for the Federal Circuit in Hayre v. West, 188 F. 3d 1327 (Fed. Cir 1999) to the effect that a single request by VA for service medical records does not satisfy the statutory duty to assist. The Court held that inherent in the duty to assist is a requirement to notify the claimant if VA is unable to obtain pertinent service medical records so that the claimant may know the basis for the denial of his or her claim; may independently attempt to obtain service medical records; and may submit alternative evidence and/or a timely appeal. Setting aside the matter of whether post-service treatment records as the dependent of a service member constitute service medical records, in this case the RO did indeed undertake more than one search for the September 1966 medical records. Moreover, the RO wrote to the veteran in September 1997, informing her of the missing records and advising her to inform the RO of any other sources of those records, thus satisfying the requirements of Hayre. After having reviewed the above history, the Board is of the opinion that the RO complied with the concerns later expressed by the Federal Circuit in Hayre. At least two efforts have been made to obtain the missing post-service medical records, and the veteran has been informed of the situation and has been asked to furnish alternative evidence. There is no indication in the record that a remand for yet another effort to locate the missing records would be productive. Thus, the Board believes that it may decide the case based on the evidence of record. Notwithstanding the above, the Board is aware that in cases such as this, VA has a heightened duty to explain its findings and conclusions. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In any event, the Board has no reason to doubt that the veteran underwent gallbladder surgery in September 1966, approximately nine months after she left active duty. No only are her statements to that effect presumed to be true, see King v. Brown, 5 Vet. App. 19, 21 (1993), but the medical evidence of record, including numerous findings of a surgical scar on physical examinations, is consistent with the veteran's contentions. Well groundedness of the claim The Board reiterates the three requirements for a well grounded claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service injury or disease and a current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). With respect to the first Caluza element, a current disability, the medical evidence of record demonstrates heartburn and a surgical scar related to the gallbladder surgery. With respect to the second Caluza prong, in-service incurrence, there is no question that the veteran was hospitalized for complaints relating to acute hepatitis in December 1965. With respect to in-service incurrence of gallbladder problems, however, there is no evidence that the veteran experienced gallbladder problems during her active duty service. The veteran does not contend, nor does the record reflect, that the September 1966 gallbladder surgery took place during service. The veteran in essence contends that the subsequent gallbladder surgery was related to the complaints of jaundice during service. However, there is no competent medical evidence which supports this conclusion. As noted above, the veteran was diagnosed with infectious hepatitis during service, not gallbladder disease. The veteran also appears to be contending that because the gallbladder surgery took place within a year after her separation from active duty, service connection is warranted therefor. While it is true that there is a one year post service presumptive period which allows for service connection of certain chronic diseases, see 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.307, gallbladder disease is not one of the listed conditions. With respect to the third Caluza element, medical nexus evidence, there is no medical evidence of record which supports the conclusion that any currently claimed disability is related to the veteran's military service. As indicated above, no medical evidence stands for the proposition that the hospitalization for infectious hepatitis, or any other incident of service, led to gallbladder surgery in September 1966. In addition, there is no evidence that the in-service hepatitis, or any other incident of service, led to the veteran's current gastrointestinal problems, including symptoms of heartburn. In the absence of such evidence, the third leg of the Caluza test is not met and the veteran's claim is denied. The veteran's own statements can not supply a competent medical diagnosis of a current medical disability, its date of onset, or its etiology. These matters can only be established by competent medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). In so stating, the Board is aware that the veteran received some medical training (a course in Basic Hospital Procedures)in the Navy and evidently worked as an operating room technician. However, there is no evidence that the veteran currently is licensed as a health care practitioner, nor is there any evidence that she currently possesses the required medical knowledge to provide competent medical evidence as to the origin of her claimed disability. In summary, for the reasons and bases expressed above, the Board has concluded that the veteran has not presented a well grounded claim of entitlement to service connection for residuals of jaundice and gallbladder surgery, to include gastrointestinal disability. The benefits sought on appeal are accordingly denied. Additional comment Because the veteran's claim for service connection is not well-grounded, VA is under no duty to further assist her in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159(a); Epps v. Gober, 126 F.3d 1454 (Fed. Cir. 1997). VA's obligation to assist depends upon the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Court has held that the obligation exists only in the limited circumstances where the appellant has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, VA is not on notice of any other known and existing evidence which would make the adjudicated service connection claim plausible. The Board's decision serves to inform the veteran of the kind of evidence which would be necessary to make her claim well-grounded, namely competent medical evidence which establishes a nexus between the veteran's service and her gallbladder disease and/or her currently claimed gastrointestinal disability. ORDER A well grounded claim not having been presented, entitlement to service connection for residuals of jaundice and gallbladder surgery, to include gastrointestinal disability, is denied. Barry F. Bohan Member, Board of Veterans' Appeals These cases do not lower the legal standard for proving a claim for service connection but rather increase the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996) [citing Ussery v. Brown, 8 Vet. App. 64 (1995)].