Citation Nr: 0006715 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-18 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hemorrhoids. 2. Entitlement to service connection for hiatal hernia. 3. Entitlement to service connection for depression associated with alcohol and drug abuse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Associate Counsel INTRODUCTION The veteran served on active duty from April 1962 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO), which denied the benefits sought on appeal. In his November 1998 substantive appeal, VA Form 9, the veteran appears to have raised issues of entitlement to service connection for a low back disorder and for a headaches disorder. The Board refers this matter to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. There is no competent medical evidence of a nexus between the claimed hemorrhoids disorder and the veteran's period of active military service or some incident thereof. 3. There is no competent medical evidence of a nexus between the claimed hiatal hernia disorder and the veteran's period of active military service or some incident thereof. 4. There is no competent medical evidence of a depression disorder; or of a nexus between the claimed depression associated with alcohol and drug abuse, and the veteran's period of active military service or some incident thereof. CONCLUSIONS OF LAW 1. The claim for service connection for hemorrhoids is not well grounded. 38 U.S.C.A. § 5107(a)(West 1991). 2. The claim for service connection for hiatal hernia is not well grounded. 38 U.S.C.A. § 5107(a)(West 1991). 3. The claim for service connection for depression associated with alcohol and drug abuse is not well grounded. 38 U.S.C.A. § 5107(a)(West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has alleged that he has disabilities of hemorrhoids, hiatal hernia, and depression associated with alcohol and drug abuse, all of which he claims are related to service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in service. 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d) (1999). The chronicity provisions of 38 C.F.R. § 3.303(b) (1999) are 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 case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). A person claiming VA benefits, however, must first meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well-grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well-grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well-grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this case, the Board finds that the claims for service connection for the hemorrhoids, hiatal hernia and depression disabilities are not well-grounded. There is no competent medical evidence of record that provides a nexus between the veteran's period of active service or any incident therein, and the claimed hemorrhoid disorder or hiatal hernia disorder. Regarding the veteran's claimed depression disorder, there is no competent evidence of a present depression or other psychiatric disorder; and no competent evidence to relate to service any claimed depression associated with alcohol and drug abuse. Regarding the three claims on appeal here, the Board notes that the medical evidence includes service medical records, and private and VA clinical and examination reports. The veteran essentially claims that he has hemorrhoids, hiatal hernia and depression disorder, all of which he asserts are related to his period of active service. However, he has offered no medical evidence to show such a causal relationship between his currently diagnosed hemorrhoids or hiatal hernia, and his service or any service-connected disability. Also, there is no medical evidence of a currently diagnosed depression disorder, or competent medical evidence relating any claimed depression disorder to service. Service medical records contain no complaint, finding or diagnosis referable to hemorrhoids, hiatal hernia or a chronic depression disorder. The veteran was seen during service at a mental health clinic with complaints of headaches. At that time the examiner made an unrelated provisional diagnosis of passive aggressive personality. The report of a May 1965 examination prior to separation from active duty shows a normal evaluation for all pertinent systems. Post-service medical records include private and VA treatment and examination reports. The veteran was examined by VA in June and July 1973, at which time he presented no complaints related to this present claim, and the examiner made no related findings or diagnoses. Subsequently there are no medical records of any treatment until 1990. VA treatment records for the period from 1990 and later show treatment for complaints of bleeding from the bowel, which was diagnosed in February 1991 as hemorrhoids. The first evidence of any psychiatric condition is shown in March 1991 when the veteran was treated for alcohol dependence and was diagnosed with chemical dependence. The veteran underwent an esophagogastroduodenoscopy (EGD) examination by VA in June 1994 for evaluation of occult blood in the stool. At that time, the examiner made normal findings regarding the esophagus, stomach and duodenum, and found no evidence of hiatal hernia. The impression was normal EGD. During a July 1997 VA examination, the veteran complained of bright red blood per rectum. He reported that this symptomatology had persisted for five or six years, occurring every day with every bowel movement. He also complained of abdominal pain, which was an aching type of pain in the epigastric area with no radiation. This occurred daily for two to three years and also was associated with a sour brash. He denied having any dysphagia, odynophagia or any heartburn. He also denied any unintentional weight loss in the past year or nausea or vomiting. After examination, the examiner's impression was that the bright red blood per rectum was most likely due to hemorrhoids, and had been happening for the last five years on a daily basis related to wiping on bowel movements. The examiner's impression regarding the abdominal pain associated with sour brash was that the most likely etiology was gastroesophageal reflux disease, peptic ulcer disease. Further laboratory studies were recommended. A related August 1997 EGD report contains findings that examination revealed a small hiatal hernia, with no other esophageal abnormalities noted. Examination also revealed gastric erosions in the stomach. During an August 1997 VA examination for mental disorders, the veteran denied any current difficulty with depressed mood and anhedonia. He indicated that he had problems with sleep and occasional feelings of hopelessness but denied any difficulty with concentration or suicidal thoughts. He denied any current psychotic symptoms. He indicated that he had had a life-long problem with authority figures. He also indicated that he had had problems with using drugs and alcohol during service; and that during any period of sobriety, he had not had any period of depression lasting for any prolonged period. After examination, the report of examination contains an Axis I diagnosis of alcohol dependence; cocaine abuse; heroin abuse; secondary to substance abuse. The examiner opined that a diagnosis of major depression could not be made because the veteran could not relate any period of prolonged time during which he was abstinent and sustained symptoms of major depression. The examiner also opined that the veteran did not demonstrate any difficulty related to mood disorder. VA clinical records subsequent to this examination have shown impressions of polysubstance abuse. The veteran underwent VA examination for mental disorders in December 1998. At that time he indicated that he currently had some depressive times with loss of interest, and no suicidal thoughts or hopelessness. His appetite was fine, concentration was all right, he occasionally had difficulty recalling things, but he had no crying spells and denied any psychotic symptoms. After examination, the report contains a diagnosis of alcohol abuse, polysubstance abuse. The examiner opined that the veteran did not have a major depression; and if he had any mood disorder, it would be depression secondary to alcohol use. Thus, the record does not contain any competent medical evidence of a current chronic depression disorder related to service. There is a provisional diagnosis during service of a passive-aggressive personality disorder. However, the Court has held that a "personality disorder is not recognized as a disability under the law." Soyini v. Derwinski, 1 Vet. App. 540, 542 (1991); 38 C.F.R. §§ 3.303(c), Part 4, 4.9 (1998). Further, none of the examinations have diagnosed any depression or other psychiatric disorder. Moreover, the recent examination report contains an opinion that the veteran did not have a major depression; and if he had any mood disorder, it would be depression secondary to alcohol use. In this regard, and with respect to the veteran's diagnosis of alcohol abuse, polysubstance abuse, the Board notes that no compensation shall be paid if the disability is the result of the veteran's abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 1991); 38 C.F.R. § 3.301 (1998). The Court has directed that "primary service connection for alcohol and drug abuse is specifically precluded because it is considered to be 'willful misconduct.'" Libertine v. Brown, 9 Vet. App. 521, 523 (1996); see also VAOPGCPREC 2-98 (Feb 10, 1998). The Court has further clarified that payment of VA disability compensation is prohibited for disabilities which are the result of alcohol or substance abuse whether based on direct service connection or on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) (1998). Barela v. West, 11 Vet. App. 280 (1998). Regarding the veteran's other two claims, none of the competent medical evidence of record shows that the veteran's currently diagnosed hemorrhoid or hiatal hernia disorders are related to service. These were diagnosed many years after service and there are no competent medical opinions or other evidence to relate them to service. Thus, with respect to the claims of entitlement to service- connection for hemorrhoids, hiatal hernia and depression associated with alcohol and drug abuse; as these claims are not plausible, these claims are not well-grounded. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The veteran has asserted in statements that the claimed disorders on appeal here are related to service. However, his own lay opinion is insufficient evidence to support the claim that his present hemorrhoids or hiatal hernia disorders are related to service; or that he presently has a psychiatric disorder of depression associated with alcohol and drug abuse, which is related to service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (holding that lay persons are not competent to offer medical opinions). Under these circumstances, the Board finds that the veteran has not submitted a well-grounded claim for service connection for the three claimed disorders. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102 (1999); Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Morton v. West, 12 Vet. App. 477 (1999); Epps, 126 F.3d at 1469; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). ORDER Entitlement to service connection for hemorrhoids is denied. Entitlement to service connection for hiatal hernia is denied. Entitlement to service connection for depression associated with alcohol and drug abuse is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals