Decision Date: 11/06/95 Archive Date: 11/06/95 DOCKET NO. 93-28 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for hepatitis. 2. Entitlement to service connection for varicose veins. 3. Entitlement to service connection for a hiatal hernia. 4. Entitlement to service connection for sigmoid adenomatous polyps and spastic colon. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran served on active duty from September 1980 to September 1983. He further contends that he served on active duty for training (ACDUTRA) in August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, that denied the veteran's claims of entitlement to service connection for hepatitis C, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his claims of entitlement to service connection for hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon. He maintains that these disorders were initially manifest during a period during ACDUTRA in August 1984. 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 veteran'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 veteran's claims of entitlement to service connection for hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon are not well-grounded. FINDINGS OF FACT 1. There is no evidence of record showing that the veteran had hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon during active service or during his alleged period of ACDUTRA. 2. There is no competent medical evidence of record of a nexus between the veteran's current hepatitis, varicose veins, hiatal hernia and sigmoid adenomatous polyps and spastic colon and his active service or his alleged period of ACDUTRA. CONCLUSION OF LAW The claims for service connection for hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon are not well-grounded and there is no statutory duty to assist the veteran in developing facts pertinent to these claims. 38 U.S.C.A. §§ 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In making a claim for service connection, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The kind of evidence needed to make a claim well-grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Generally, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. See 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). Service connection may also 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) (1994). Establishing direct service connection for a disability which was not clearly present in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1994); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994); Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The Board has carefully reviewed the evidence of record to determine if there are well-grounded claims. Concerning the first criterion, there is no question in this case that the veteran currently has hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon. The veteran has reported that he was initially diagnosed as having sigmoid adenomatous polyps in 1988. VA outpatient treatment notes and a report of hospitalization also reveal that he was diagnosed as having a spastic colon in October 1989 and as having hepatitis in March 1991. Diagnoses of hepatitis C with residual hepatitis, sigmoid adenomatous polyps, a history of spastic colon, a hiatal hernia and bilateral varicose veins were reported at the time of the veteran's VA examination in January 1992. As noted above, lay or medical evidence may be sufficient to support the second element in this case. See Caluza, 7 Vet.App. 498; Layno, 6 Vet.App. at 469, citing Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet.App. 619, 620 (1992). However, the veteran does not contend, nor does the evidence show, that hepatitis, varicose veins, a hiatal hernia or sigmoid adenomatous polyps and spastic colon were diagnosed or otherwise apparent during his period of active service from 1980 to 1983. His service medical records for this period contain no complaints or medical findings of these disorders. Rather, the veteran alleges these disorders were initially manifest during ACDUTRA in August 1984. In this regard, the veteran's DD-214 demonstrates that he had active service only from September 1980 to September 1983. No periods of ACDUTRA were shown. In July and October 1991, the service department certified in official documentation from the National Personnel Records Center (NPRC) that the veteran's service extended only from September 1980 to September 1983. This certification further stated that the veteran was on reserve status from September 1983 to December 1985 with no ACDUTRA. The service department's findings verifying a person's service are binding on the VA. 38 C.F.R. § 3.203 (1994); See Duro v. Derwinski, 2 Vet.App. 530, 532 (1992); Dacoron v. Brown, 4 Vet.App. 115, 120 (1993). However, the Board observes that the veteran's service medical records contain a report of hospitalization dated in August 1984. These records, while not determinative, tend to support his contention that he had ACDUTRA during this time period. Under these circumstances, the Board recognizes that it would normally have an obligation to secure a redetermination of the veteran's service dates from the service department. Cf. Sarmiento v. Brown, 7 Vet.App. 80 (1994). However, in the case at hand, such development would not be a wise or appropriate use of VA resources. Specifically, even assuming that the veteran did have ACDUTRA in August 1984, there were no medical findings of hepatitis, varicose veins, a hiatal hernia or sigmoid adenomatous polyps and spastic colon reflected in the service medical records corresponding to this time period. These medical records reflect that the veteran sought treatment for nausea, vomiting, fever, chills and stomach pain of two days duration in August 1984. He gave a history of alcohol intake of approximately 12 to 18 beers per day. He reportedly consumed alcohol during the previous evening. He denied a history of hepatitis. He was admitted for observation and within 24 hours after admission his symptoms had subsided. More importantly, it appears that the examiner considered a diagnosis of hepatitis, but following laboratory studies and observation for one week, the veteran was diagnosed only as having alcohol abuse and gastroenteritis. As noted above, despite the lack of evidence of the claimed disabilities in service, service connection may be warranted 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) (1994). Although the veteran has presented competent medical evidence of current hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon, the record lacks evidence of a nexus, or link, between these conditions and his symptoms noted in August 1984. There are no medical opinions contained in any of the veteran's post service medical records relating his current disorders to the one episode of gastroenteritis in August 1984. Although the veteran has alleged that his gastroenteritis diagnosed in 1984 and current disorders are related, his statements are not competent in this regard Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). As this determination involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. See Grottveit at 93. In sum, although the veteran has offered competent medical evidence of current hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon, he has presented no evidence of these disorders during his verified active service from 1980 to 1983 or during his alleged period of ACDUTRA in 1984. Moreover, there is no medical evidence of record establishing a nexus between the veteran's current disorders and any disease or injury during active service or during his alleged ACDUTRA. Without competent medical evidence establishing such a nexus, or link, his claims for service connection are not well- grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994). The Board can identify no basis in the record that would make the veteran's claims plausible or possible. 38 U.S.C.A. § 5107(a)(West 1991); see Grottveit at 92, Tirpak, at 610-11; and Murphy at 81. Considering the foregoing, the Board concludes that the veteran has not submitted evidence sufficient to render the claims well-grounded. See Caluza, 7 Vet.App. 498. Where the veteran has not met this burden, the VA has no duty to assist him in developing facts pertinent to his claims including no duty to provide him with another medical examination. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau, 2 Vet.App. at 144 (where the claim was not well-grounded, VA was under no duty to provide the veteran with an examination). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, No. 93-985, slip op. at 14 (U.S. Vet. App. July 14, 1995). Here, the RO fulfilled its obligation under section 5103(a) in the May 1992 statement of the case in which it informed the veteran that the reason his claims had been denied was that there was no evidence of hepatitis, varicose veins, a hiatal hernia or sigmoid adenomatous polyps and spastic colon during service. Moreover, this Board decision informs the veteran of the evidence that is lacking to make his claims well-grounded. Unlike the situation in Robinette, he has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well-grounded. Although the RO did not specifically state that it denied the veteran's claims on the basis that they were not well- grounded, the Board concludes that this error was harmless. See Edenfield v. Brown, 6 Vet.App. 432 (1994) (per curiam order) (requesting briefing on whether remedy for deciding on the merits a claim that is not well-grounded should be affirmance, on the basis of nonprejudicial error, or vacating of the decision). Accordingly, the Board dismisses the veteran's claims for service connection for hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon as not well-grounded. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993) (if a claim is not well- grounded, the Board does not have jurisdiction to adjudicate it). Finally, the Board points out that if the veteran remains concerned that the status of his service be conclusively determined, his proper remedy is an application to the Board for Correction of Military Records. See Cahall v. Brown, 7 Vet App. 232, 237 (1994). ORDER Because they are not well-grounded, the claims of entitlement to service connection for hepatitis, varicose veins, a hiatal hernia and sigmoid adenomatous polyps and spastic colon are dismissed, and so much of the March 1992 rating decision as denied these claims on the merits is vacated. 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 assigned to an individual member of the Board. 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 which 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.