Citation NR: 9703502 Decision Date: 01/31/97 Archive Date: 02/12/97 DOCKET NO. 91-48 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic glomerulonephritis, to include malignant hypertension. 2. Entitlement to service connection for arteriosclerotic heart disease with angina pectoris. 2. Entitlement to service connection for psoriasis. REPRESENTATION Appellant represented by: Thomas H. Bannigan, Esq. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Thomas C. Taylor, Associate Counsel INTRODUCTION The appellant had active service from May 1963 to May 1967. Although the veteran’s case is now under the jurisdiction of the Regional Office (RO) in Detroit, Michigan, this matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 1990 rating decision of the North Little Rock, Arkansas, Regional Office (RO). In that decision, the RO denied service connection for heart disease, a kidney condition with hypertension, and a skin condition (diagnosed psoriasis). Following a remand of the case to the RO in April 1992 to more fully develop the evidence, the Board, by a December 3, 1992 decision, denied the veteran’s appeal of the RO’s denial of service connection for heart disease, kidney disease to include hypertension, and psoriasis. The appellant appealed the Board’s denial to the United States Court of Veterans Appeals (Court). In January 1994, the Court entered judgment granting a Joint Motion for Remand and ordered compliance with the instructions in the Motion. The Motion directed additional development of the issues of entitlement to service connection for heart disease and of entitlement to service connection for kidney disease, to include hypertension. The Motion also indicates that the Court will retain jurisdiction over the appellant's claim of service connection for psoriasis. Additionally, the Court’s order vacated the Board’s December 3, 1992, decision. By an August 1994 Remand, the Board returned the case to the RO for the additional development as directed by the Motion. The RO has complied with the Motion and returned the case to the Board for adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his current psoriasis began during service, but was improperly diagnosed as acne during service. The veteran contends that his strep infections during service subsequently progressed to glomerulonephritis and malignant hypertension, which ultimately caused his arteriosclerotic heart disease with angina pectoris. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 service connection for kidney disease, to include hypertension is warranted and that entitlement to service connection for heart disease is warranted. It is also the decision of the Board that the veteran has not presented a well-grounded claim for service connection for psoriasis. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for disposition of the veteran's claims for service connection for chronic glomerulonephritis, to include malignant hypertension and for service connection for arteriosclerotic heart disease with angina pectoris. 2. The veteran had “strep” infections during service. 3. The record contains positive evidence consisting of competent medical opinion that the veteran’s “strep” infections during service brought about chronic glomerulonephritis, with malignant hypertension, which subsequently brought about arteriosclerotic heart disease with angina pectoris; the record does not contain negative evidence with greater probative weight as to the relationship between current disability of the kidneys and cardiovascular system and disease incurred in service. 4. The veteran had acne during service; he has a current diagnosis of psoriasis. 5. Psoriasis was not present in service and the veteran has not submitted any competent medical evidence of a nexus between his acne during service and his current psoriasis, or that the skin disease in service was, in fact, psoriasis. CONCLUSIONS OF LAW 1. Strep infections during the veteran’s service subsequently resulted in chronic glomerulonephritis, to include malignant hypertension. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1995). 2. The veteran’s arteriosclerotic heart disease with angina pectoris is secondary to his chronic glomerulonephritis, to include malignant hypertension. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1995). 3. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for psoriasis. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred during service. Watson v. Brown, 4 Vet.App. 309, 314 (1993). See also 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304 (1994). This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Also, a disease which is diagnosed after service discharge may be considered to be service connected if an event or exposure during service subsequently results in disability or death. VA O.G.C. Prec. Op. 2-93 (January 13, 1993); See also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ("[p]roof of direct service connection … entails proof that exposure during service caused the malady that appears many years later"). Each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of service as shown by service records, the official history of each organization in which he served, his service medical records, and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). In evaluating the evidence to establish service connection, however, the greatest weight is accorded to the clinical evidence prepared during or closely proximate to service. Cf. Biggins v. Derwinski, 1 Vet.App. 474, 476 (1991). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Kidney Disease, to Include Hypertension, and Heart Disease Except when otherwise provided by the Secretary in accordance with the provisions of [Title 38], a person who submits a claim for benefits under a law administered by the Secretary shall have 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). Generally, when a veteran contends that his or her service-connected disability has caused a new disability, he or she must submit competent medical evidence of a causal relationship directly between the two disabilities to establish a well-grounded claim. Jones v. Brown, 7 Vet.App. 134 (1994). The veteran has submitted, or the claims file otherwise includes, evidence that the veteran had strep infections during service. Also included are medical opinions associating the veteran’s in-service strep infections with his current chronic glomerulonephritis, to include malignant hypertension, and his arteriosclerotic heart disease with angina pectoris. The Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107. The veteran had hematuria and positive strep cultures during service. The evidence of record does not indicate, however, a diagnosis of kidney disease, of hypertension, or of heart disease during service, at his service discharge examination in April 1967, or otherwise proximate to service. A report of private hospitalization in February 1972 does not indicate a history of, or clinical evidence of, cardiovascular or genitourinary disease. Copies of office notes of a private physician dated from 1983 to 1988 show that the veterans blood pressure was 145/90 in December 1984. In May 1986, the veteran reported a 15 year history of hypertension, and reported a history of arteriosclerotic heart disease. In a statement dated in June 1986, a private physician indicated that the veteran’s diagnoses from 1974 - 1979 included chronic glomerulonephritis and hypertension. A VA medical examination report, dated in October 1990, indicates, “While in the service, [the veteran] had a history of chronic strep throat infection, which subsequently progressed to glomerulonephritis and malignant hypertension.” The examiner’s final diagnoses included arteriosclerotic heart disease with angina pectoris, malignant hypertension, and chronic glomerulonephritis, secondary to repeated streptococcal infections. A medical doctor commented in February 1995, “It is my recollection that [the veteran’s] history of renal insufficiency, hematuria, and proteinuria, were very consistent with a prior diagnosis of glomerulonephritis.” Another physician commented in June 1995: Based on a review of the records, particularly those of the VA hospital, in 1966 and ‘67, a reasonable theory would be that [the veteran] had recurrent strep infections of the throat resulting the blood found in his urine. To support this, is the ongoing treatment with penicillin, for this problem, and a negative tests for mononucleosis. Due to the history of blood in his urine, he did have cystoscopy, and was told by the physicians at that time, he probably had developed the bleeding in his urine as a result of the throat infections, commonly called post-streptococcal nephritis. After his discharge, he continued to have blood in his urine, to the point that he saw frank blood by 1967 and required hospitalization and was treated at that time for a kidney infection. It was not until the early 1970’s that the consequences of this occult or indolent kidney damage was measurable, in terms of blood pressure. As a consequence of the effect on the kidney, and elevation of blood pressure, he was more susceptible to the heart disease, especially in light of the fact that he does not have any other significant risk factors of smoking, cholesterol, or family history. In summary, it would be my opinion that there is sufficient information and findings in the early Service records confirming the recurrent sore throats. This led down the pathway to the body reacting and the development of the post- streptococcal nephritis. As a consequence of this renal damage, on several occasions, blood was found in this urine without an adequate explanation other than a suspicion of a prostate problem, that was not proven. Subsequent to his discharge, this had resulted in further effects on his blood pressure and subsequently to the heart. Although the referenced records in 1966 and 1967 are from a military hospital, not a VA hospital, the Board nonetheless finds that the above opinion is competent and credible. In light of the above evidence, the Board finds that the veteran’s chronic glomerulonephritis, to include malignant hypertension, and his arteriosclerotic heart disease with angina pectoris, although diagnosed after service discharge, are service-connected. The claims’ folder contains at least a preponderance of the evidence that the veteran’s strep infections during service subsequently resulted chronic glomerulonephritis, to include malignant hypertension. Similarly, the claims folder contains at least a preponderance of the evidence that the veteran’s arteriosclerotic heart disease with angina pectoris is secondary to his malignant hypertension. As the evidence is more than in equipoise in favor of the veteran, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). Psoriasis The threshold question in all cases is whether the claim is well-grounded under 38 U.S.C.A. § 5107(a). Boeck v. Brown, 6 Vet.App. 14, 17 (1993). It is a question of law subject to de novo adjudication. Robinette v. Brown, 8 Vet.App. 69 (1995). 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, 81 (1990). Foremost, there must be evidence of a current disability. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Furthermore, there must be more than a mere allegation; the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required to fulfill the well- grounded-claim requirement of section 5107(a). Grottveit v. Brown, 5 Vet.App. 91 (1993). Medical evidence, however, must be more than speculative. Tirpak, 2 Vet.App. at 611. Where the determinative issue does not require medical expertise, lay testimony may suffice by itself. Heuer v. Brown, 7 Vet.App. 379, 384 (1995). Limited to the purpose of deciding whether or not to open a new claim or whether to or not reopen a previously denied claim, evidentiary assertions must be presumed true. The well-grounded-claim requirement parallels the rule applied in civil actions to determine whether a complaint has stated a cause of action -- a basis for affording the relief sought -- for which purpose the facts alleged are accepted as true. Robinette, 8 Vet.App. at 75. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). The assertions of a lay party on matters of medical causation, diagnosis, or date of inception of a disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet.App. 211 (1993). Any adjudication on the merits of a claim which is not well grounded would constitute error. Grivois v. Brown, 6 Vet.App. 136 (1994). The veteran had a diagnosis of a skin disorder during service, namely acne. His service separation medical report indicates that his acne was controlled and that he had no skin disability. The veteran has submitted no other report of any skin disability proximate to his service. The veteran now has a current diagnosis of a skin disorder, namely psoriasis. A VA medical report iterates, “The veteran describes a history of psoriasis beginning in 1963.” The examiner diagnosed the veteran with psoriasis, occasionally extensive in nature. Although the Board accepts the doctor’s opinion as competent evidence to establish the veteran’s current skin disability as psoriasis, his opinion is not competent as to the diagnosis during service. As the Court has held: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute ‘competent medical evidence’ satisfying the Grottveit[ v. Brown, 5 Vet.App. 91 (1993)] requirement. Such evidence cannot enjoy the presumption of truthfulness accorded by Robinette[ v. Brown, 8 Vet.App. 69, 75-76 (1995)] (as to determination of well groundedness) and Justus v. Principi, 3 Vet.App. 510, 513 (1992) (as to determination of whether evidence is ‘new and material’ for purposes of reopening a claim), because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into ‘competent medical evidence’ merely because the transcriber happens to be a medical professional. LaShore v. Brown, 8 Vet App 406, 408 (1995). Moreover, at a hearing held in April 1991, the veteran agreed that his skin condition during service was diagnosed as acne, but that “. . . to me it’s the same thing. I am not a doctor, but it appears to be the same condition that I was treated for then.” Transcript at 5. Simply put, the veteran does not offer, and the record does not contain, any competent evidence of a relationship between his acne during service and a current skin disability, including psoriasis. The determinative issue involves either medical etiology or a medical diagnosis. Competent medical evidence to the effect that the claim is "plausible" or "possible" is required to fulfill the well-grounded-claim requirement. Grottveit, 5 Vet.App. 91. As the claims folder contains no competent evidence of a nexus between the veteran’s acne during his service and his current psoriasis, his claim is not well grounded. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Further, the veteran has not alleged and the record does not show that there potentially exists any competent medical evidence which would make his claim well grounded. Accordingly, as to this issue there is no further obligation on the part of the Secretary under 38 U.S.C.A. § 5103 (West 1991). Robinette v. Brown, 8 Vet.App. 69 (1995). When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice to respond, and if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of his failure to meet his initial burden of submitting evidence of a well-grounded claim, the Board concludes that he has not been prejudiced by this decision. ORDER Entitlement to service connection for chronic glomerulonephritis, to include malignant hypertension, is granted. Entitlement to service connection for arteriosclerotic heart disease with angina pectoris, is granted. Insofar as the veteran’s claim for entitlement to service connection for psoriasis is not well grounded, the appeal is denied. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1995), 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, 102 Stat. 4105, 4122 (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. - 2 -