Citation Nr: 0005960	
Decision Date: 03/06/00    Archive Date: 03/14/00

DOCKET NO.  98-16 308	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUES

1.  Entitlement to service connection for residuals of a 
subtotal resection of the stomach due to bleeding ulcers.  

2.  Entitlement to service connection for a disorder 
manifested by blackout spells, secondary to radiation 
exposure.  

3.  Entitlement to service connection for residuals of 
residuals of burns on the arms and face, secondary to 
radiation exposure.  

4.  Entitlement to service connection for a skin disorder, 
including skin cancer, secondary to radiation exposure.  

5.  Entitlement to service connection for residuals of a left 
ankle sprain.  

6.  Entitlement to service connection for postoperative 
residuals of left knee surgery, including arthritis.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. S. Freret, Counsel


INTRODUCTION

The appellant had active military service from June 1953 to 
May 1955.  

This appeal comes before the Board of Veterans' Appeals 
(Board) from a rating decision by the Department of Veterans 
Affairs (VA) Montgomery, Alabama, Regional Office (RO).  


FINDINGS OF FACT

1.  There is no competent evidence of a gastrointestinal 
disorder, including an ulcer, in service, or of a nexus 
between the appellant's current residuals of a subtotal 
resection of the stomach due to bleeding ulcers and inservice 
disease or injury.  

2.  There is no competent medical evidence demonstrating that 
the appellant currently has a disorder manifested by blackout 
spells.  

3.  There is no competent medical evidence demonstrating that 
the appellant currently has residuals of burns on the arms 
and face.  

4.  There is no competent medical evidence demonstrating that 
the appellant currently has a skin disorder.  

5.  There is no competent medical evidence demonstrating that 
the appellant currently has residuals of a left ankle sprain.  

6.  A chronic knee disorder did not begin in service and if 
the appellant had a left knee disability prior to entering 
active military service, such disability did not undergo an 
increase in severity during service.  


CONCLUSIONS OF LAW

1.  The appellant has not submitted a well-grounded claim for 
service connection for residuals of a subtotal resection of 
the stomach due to bleeding ulcers.  38 U.S.C.A. §§ 1101, 
1110, 1112, 1113, 1131, 1137, 5107 (West 1991 & Supp. 1999); 
38 C.F.R. §§ 3.303(d), 3.307, 3.309, 3.311 (1999).  

2.  The appellant has not submitted a well-grounded claim for 
service connection for a disorder manifested by blackout 
spells secondary to radiation exposure.  38 U.S.C.A. §§ 1110, 
1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.311 (1999).  

3.  The appellant has not submitted a well-grounded claim for 
service connection for residuals of burns on the arms and 
face secondary to radiation exposure.  38 U.S.C.A. §§ 1110, 
1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.311 (1999).  

4.  The appellant has not submitted a well-grounded claim for 
service connection for a skin disorder, including skin 
cancer, secondary to radiation exposure.  38 U.S.C.A. 
§§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 
C.F.R. §§ 3.303(d), 3.307, 3.309, 3.311 (1999).  

5.  The appellant has not submitted a well-grounded claim for 
service connection for residuals of a left ankle sprain.  38 
U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. 
§ 3.303(d) (1999).  

6.  A left knee disorder was neither incurred in or 
aggravated by military service.  38 U.S.C.A. §§ 1101, 1110, 
1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.303(d), 
3.306, 3.307, 3.309 (1999).  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant asserts that he has a gastrointestinal 
disorder, a disorder manifested by blackout spells, residual 
burns on his arms and face, and a skin disorder as a result 
of his claimed exposure to radiation.  He alleges that on 
several occasions during service he was assigned to guard 
airplanes that were loaded with radioactive materials.  He 
indicated on his May 1955 separation medical examination from 
service that he had had to carry a box of radioactive 
material on one occasion from Japan to Korea.  He also argues 
that he has left ankle and left knee disorders that are 
related to injuries he sustained in service.  

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by military 
service.  38 U.S.C.A. §§ 1110, 1131.  Additionally, where a 
veteran served continuously for 90 days or more during a 
period of war, or during peacetime service after December 31, 
1946, and peptic ulcer disease, arthritis, or cancer becomes 
manifest to a degree of 10 percent within one year from date 
of termination of such service, such disease shall be 
presumed to have been incurred in service, even though there 
is no evidence of such disease during the period of service.  
This presumption is rebuttable by affirmative evidence to the 
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 
§§ 3.307, 3.309.  

Regulations also provide that service connection may be 
established where all the evidence of record, including that 
pertinent to service, demonstrates that the veteran's current 
disability was incurred in service.  38 C.F.R. § 3.303(d).  

A preexisting injury or disease will be considered to have 
been aggravated by active service where there is an increase 
in disability during such service, unless there is a specific 
finding that the increase in disability is due to the natural 
progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. 
§ 3.306(a).  

Clear and unmistakable evidence (obvious or manifest) is 
required to rebut the presumption of aggravation where the 
preservice disability underwent an increase in severity 
during service.  This includes medical facts and principles 
that may be considered to determine whether the increase is 
due to the natural progress of the condition.  Aggravation 
may not be conceded where the disability underwent no 
increase in severity during service on the basis of all the 
evidence of record pertaining to the manifestations of the 
disability prior to, during and subsequent to service.  38 
U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).  

I.  A Stomach Disorder, Blackout Spells, a Skin Disorder, 
Residuals
 of Burns on the Arms and Face, and a Left Ankle Disorder

If a veteran was exposed to radiation during active military, 
naval, or air service, the following diseases shall be 
service-connected even though there is no record of such 
disease during service, provided further that the rebuttable 
presumption provisions of 38 C.F.R. § 3.307 are also 
satisfied: Leukemia (other than chronic lymphocytic leukemia), 
cancers of the thyroid, breast, pharynx, esophagus, stomach, 
small intestine, pancreas, bile ducts, gall bladder, salivary 
gland, and urinary tract ("urinary tract" means the kidneys, 
renal pelves, ureters, urinary bladder, and urethra), multiple 
myeloma, lymphomas (except Hodgkin's disease), and primary 
liver cancer (except if cirrhosis or hepatitis B is 
indicated).  38 C.F.R. § 3.309(d)(2).  

Evidence which may be considered in rebuttal of service 
incurrence of a disease listed in § 3.309 will be any evidence 
of a nature usually accepted as competent to indicate the time 
of existence or inception of disease, and medical judgment 
will be exercised in making determinations relative to the 
effect of intercurrent injury or disease.  The expression 
"affirmative evidence to the contrary" will not be taken to 
require a conclusive showing, but such showing as would, in 
sound medical reasoning and in the consideration of all 
evidence of record, support a conclusion that the disease was 
not incurred in service.  38 C.F.R. § 3.307(d).  

The term radiation-exposed veteran means either a veteran who 
while serving on active duty, or an individual who while a 
member of a reserve component of the Armed Forces during a 
period of active duty for training or inactive duty training, 
participated in a radiation-risk activity.  38 C.F.R. 
§ 3.309(d)(3)(i).  The term radiation-risk activity includes 
the following: onsite participation in a test involving the 
atmospheric detonation of a nuclear device; the occupation of 
Hiroshima or Nagasaki, Japan, by United States forces during 
the period beginning on August 6, 1945, and ending on July 1, 
1946; and internment as a prisoner of war in Japan (or service 
on active duty in Japan immediately following such internment) 
during World War II which resulted in an opportunity for 
exposure to ionizing radiation comparable to that of the 
United States occupation forces in Hiroshima or Nagasaki, 
Japan, during the period beginning on August 6, 1945, and 
ending on July 1, 1946.  38 C.F.R. § 3.309(d)(3)(ii).  

For purposes of 38 C.F.R. § 3.311(b), discussed below, a 
"radiogenic disease" means a disease that may be induced by 
ionizing radiation and shall include the following: all forms 
of leukemia except chronic lymphatic (lymphocytic) leukemia, 
cancers of the thyroid, breast, lung, bone, liver, skin, 
esophagus, stomach, colon, pancreas, kidney, urinary bladder, 
salivary gland, and ovaries, multiple myeloma, posterior 
subcapsular cataracts, non-malignant thyroid nodular disease, 
parathyroid adenoma, and tumors of the brain and central 
nervous system.  38 C.F.R. § 3.311(b)(2)(i).  Furthermore, VA 
has determined that polycythemia vera is not a "radiogenic 
disease" and has been specifically excluded from the 
aforementioned list.  38 C.F.R. § 3.311(b)(3).  

If a radiation claim is based on a disease other than one of 
those listed in 38 C.F.R. § 3.311(b), VA shall nevertheless 
consider the claim under the foregoing provisions provided 
that the claimant has cited or submitted competent scientific 
or medical evidence that the claimed condition is a 
radiogenic disease.  38 C.F.R. § 3.311(b)(4); See Combee v. 
Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

The diseases listed at 38 C.F.R. § 3.311(b)(2) shall have 
become manifest 5 years or more after exposure, except that 
bone cancer must become manifest within 30 years after 
exposure, leukemia may become manifest at any time after 
exposure, and posterior subcapsular cataracts must become 
manifest 6 months or more after exposure.  38 C.F.R. 
§ 3.311(b)(5).  

When it is determined that: (1) a veteran was exposed to 
ionizing radiation as a result of participation in the 
atmospheric testing of nuclear weapons, the occupation of 
Hiroshima or Nagasaki, Japan, from September 1945 until July 
1946, or other activities as claimed, and (2) the veteran 
subsequently developed a radiogenic disease, and (3) such 
disease first became manifest within the period specified in 
paragraph 38 C.F.R. § 3.311(b)(5), listed above, then the 
claim will be referred to the Under Secretary for Benefits 
for further consideration.  If any of the foregoing three 
requirements has not been met, it shall not be determined 
that a disease has resulted from exposure to ionizing 
radiation under such circumstances.  38 C.F.R. § 3.311(b)(1).  

There has been no competent evidence presented in this case 
that shows the appellant has been diagnosed with a 
gastrointestinal disorder, blackout spells, residuals of 
burns on the arms and face, or a skin disorder, including 
skin cancer, attributable to exposure to ionizing radiation.  
There is no medical evidence of record that indicates the 
appellant has any ionizing related disease.  Therefore, 
service connection is not warranted for the appellant's 
residuals of a subtotal resection of the stomach due to 
bleeding ulcers on the basis that it is due to exposure to 
ionizing radiation.  Nor is service connection warranted for 
a disorder manifested by blackout spells, residuals of burns 
on the arms and face, or a skin disorder on the basis of 
exposure to ionizing radiation, because the evidence fails to 
demonstrate the presence of any of those conditions.  

Notwithstanding the foregoing, the United States Court of 
Appeals for the Federal Circuit has determined that the 
Veterans' Dioxin and Radiation Exposure Compensation 
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, 
§ 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a 
veteran from establishing service connection with proof of 
actual direct causation.  Combee v. Brown, 34 F.3d 1039, 1045 
(Fed. Cir. 1994).  However, the United States Court of 
Appeals for Veterans Claims (Court) has held that where the 
issue involves medical causation, competent medical evidence 
which indicates that the claim is plausible or possible is 
required to set forth a well-grounded claim.  Grottveit v. 
Brown, 5 Vet. App. 91, 93 (1993).  

A claimant filing for VA benefits has the duty to submit 
evidence that must "justify a belief by a fair and impartial 
individual" that the claim is plausible, and, therefore, well 
grounded.  38 U.S.C.A. § 5107(a).  A claim is not well 
grounded if the claimant fails to present such evidence.  
Tirpak v. Derwinski, 2 Vet. App. 609 (1992).  Evidentiary 
assertions by the claimant must be accepted as true for the 
purpose of determining if a claim is well grounded, except 
where such assertions are inherently incredible or beyond the 
competence of the person making the assertion.  King v. 
Brown, 5 Vet. App. 19 (1993).  

For a claim of service connection to be well grounded, there 
must be competent evidence of current disability, evidence of 
the incurrence or aggravation of a disease or injury during 
service, and a nexus between the inservice injury or disease 
and the current disability.  That is, an injury during 
service may be verified by medical or lay witness statements; 
however, the presence of a current disability requires a 
medical diagnosis; and, where an opinion is used to link the 
current disorder to a cause or symptoms during service, a 
competent opinion of a medical professional is required.  
Caluza v. Brown, 7 Vet. App. 498 (1995).  

The Board has carefully reviewed the evidence of record to 
determine if there are well-grounded claims for service 
connection for residuals of a subtotal resection of the 
stomach due to bleeding ulcers, a disorder manifested by 
blackout spells, residuals of burns on the arms and face, a 
skin disorder, and residuals of a left ankle sprain.  While 
the first element required to show a well-grounded claim is 
met with regard to the claim for service connection for 
residuals of a subtotal resection of the stomach due to 
bleeding ulcers because a January 1997 VA medical examination 
report notes a history of subtotal resection of the stomach 
in 1969 and includes a diagnosis of residuals of a subtotal 
resection of the stomach, the medical evidence of record does 
not show that the appellant currently has a disorder 
manifested by blackout spells, residuals of burns on the arms 
and face, or a skin disorder, including skin cancer.  Nor is 
there current medical evidence of the presence of residuals 
of a left ankle sprain, although service medical records 
reveal that the appellant was treated for a left ankle sprain 
in February 1954.  The January 1997 VA examination did not 
reveal any evidence of blackout spells, residuals of burns on 
the arms and face, a skin disorder, or left ankle disability.  
Therefore, the claims of entitlement to service connection 
for a disorder manifested by blackout spells, residuals of 
burns on the arms and face, a skin disorder, including skin 
cancer, and residuals of a left ankle sprain do not satisfy 
the first element for a well-grounded claim under Caluza, 
which requires that competent medical evidence establish the 
presence of a current disability.  

The second element of Caluza is not met as to the claim for 
service connection for residuals of a subtotal resection of 
the stomach due to bleeding ulcers because the service 
medical records do not show manifestation of any 
gastrointestinal disorder, and bleeding ulcers are not shown 
to have been manifested to a compensable degree within the 
first year after the appellant's separation from service.  
The third element of Caluza is also not met with regard to 
this claim because the appellant fails to show the required 
nexus between any residuals of the subtotal resection of the 
stomach due to bleeding ulcers which may currently exist and 
any injury or disease in service.  There is no medical 
evidence establishing a link of the appellant's postservice 
gastrointestinal disability requiring stomach surgery in 1969 
to his military service.  See Rabideau v. Derwinski, 2 Vet. 
App. 141, 144 (1992); Franko v. Brown, 4 Vet. App. 502, 505 
(1993).  

Medical diagnoses involve questions that are beyond the range 
of common experience and common knowledge; rather they 
require the special knowledge and experience of a trained 
medical professional.  Although the appellant has presented 
statements regarding his residuals of a subtotal resection of 
the stomach due to bleeding ulcers, and the alleged disorder 
manifested by blackout spells, residuals of burns on the arms 
and face, skin disorder, and residuals of a left ankle 
sprain, the record does not show that he is a medical 
professional, with the training and expertise to provide 
clinical findings regarding any etiological relationship of 
his gastrointestinal disorder to service, or regarding a 
diagnosis of a disorder manifested by blackout spells, 
residuals of burns on the arms and face, a skin disorder, or 
residuals of a left ankle sprain.  Consequently, his lay 
statements, while credible with regard to his subjective 
complaints and history, are not competent evidence for the 
purpose of showing a nexus between current complaints and 
service.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 
(1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  

Based upon the foregoing, the Board concludes that the 
appellant has failed to meet his initial burden of presenting 
evidence that his claims of entitlement to service connection 
for residuals of a subtotal resection of the stomach due to 
bleeding ulcers, a disorder manifested by blackout spells, 
residuals of burns on the arms and face, a skin disorder, and 
residuals of a left ankle sprain are plausible or otherwise 
well grounded.  Therefore, they must be denied.  

Where the veteran has not met his initial burden, VA has no 
duty to assist him in developing facts pertinent to his 
claim, including no duty to provide him with a medical 
examination.  38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 
2 Vet. App. 141, 144 (1992) (where the claim was not well 
grounded, VA was under no duty to provide the veteran with an 
examination).  However, where a claim is not well grounded, 
it is incomplete, and depending on the particular facts of 
the case, VA is obliged under 38 U.S.C.A. § 5103(a) to advise 
the claimant of the evidence needed to complete his 
application.  See Robinette v. Brown, 8 Vet. App. 69 (1995).  
In this case, the RO substantially complied with this 
obligation in the statements of the case issued in August and 
September 1998.  Moreover, this Board decision informs the 
appellant of the evidence that is lacking to make his claims 
for service connection for residuals of a subtotal resection 
of the stomach due to bleeding ulcers, a disorder manifested 
by blackout spells, residuals of burns on the arms and face, 
a skin disorder, and residuals of a left ankle sprain well 
grounded.  Unlike the situation in Robinette, he has not put 
VA on notice of the existence of any specific evidence that, 
if submitted, could make these claims well grounded.  

Although the RO did not specifically state that it denied the 
appellant's claims for service connection for residuals of a 
subtotal resection of the stomach due to bleeding ulcers, a 
disorder manifested by blackout spells, residuals of burns on 
the arms and face, a skin disorder, and residuals of a left 
ankle sprain on the basis that they were not well grounded, 
the Board concludes that this error was not prejudicial to 
him.  See Edenfield v. Brown, 8 Vet. App. 384 (1995).  

II.  A Left Knee Disorder

Review of the appellant's service medical records reveals 
that he complained of left knee pain at his April 1953 
enlistment examination.  That examination report noted a 
history of fractures of both legs, at the knees, in 1951 
(left leg) and 1952 (right leg).  The service medical records 
do not reveal any complaint or treatment for left knee 
disability while the appellant was on active duty.  The May 
1955 separation examination noted normal findings for the 
lower extremities.  

Postservice medical evidence shows that at the January 1997 
VA examination the appellant gave a history of having 
undergone left knee surgery in 1984.  A long scar was noted 
along the left knee and inside at the January 1997 VA 
examination, and range of motion was limited in the knee.  An 
January 1997 VA X-ray of the left knee revealed 
osteoarthritic changes.  The diagnoses reported in January 
1997 included status post left knee surgery for ligament 
damage and osteoarthritis of the left knee.  The Board notes 
that the X-ray finding of osteoarthritis in the left knee at 
the January 1997 is the initial clinical manifestation of 
arthritis in the left knee.  

In the absence of any complaints of or treatment for a left 
knee disability during service, or of any competent medical 
evidence indicating that the left knee condition that 
preexisted military service underwent an increase in severity 
as a result of such service, or of a manifestation of 
arthritis in the left knee within the first year after 
service, the Board is unable to identify a basis to grant 
service connection for postoperative residuals of left knee 
surgery, including arthritis.  


ORDER

The claims for service connection for residuals of a subtotal 
resection of the stomach due to bleeding ulcers, a disorder 
manifested by blackout spells, residuals of burns on the arms 
and face, a skin disorder, and residuals of a left ankle 
sprain are denied.  

Service connection is denied for postoperative residuals of 
left knee surgery, including arthritis.  



		
	M. W. GREENSTREET
	Member, Board of Veterans' Appeals