Citation Nr: 9822918 Decision Date: 07/29/98 Archive Date: 08/04/98 DOCKET NO. 96-47 047 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus with an associated eye disorder. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for gastroesophageal reflux. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Mark E. Goodson INTRODUCTION The veteran served on active duty from July 1965 to June 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 1995 decision by the RO that denied service connection for diabetes with hypertension and an associated visual problem, and for gastroesophageal reflux. The characterization of the issues on appeal warrants some discussion. In July 1989, the RO entered a decision denying service connection for “eye trouble.” The veteran was notified of this decision by an August 1989 letter, but no copy of this letter was ever sent to his representative. (A July 1989 record and a VA Form 21-8947 reflect that the veteran was represented by The American Legion at that time.) Thus, that claim remained open thereafter, notwithstanding that the veteran did not appeal that decision within a year thereof. See 38 U.S.C.A. §§ 211, 4004, 4005 (West 1988); 38 C.F.R. § 19.114 (1988); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995); Thompson (Charles) v. Brown, 8 Vet. App. 169, 177 (1995). However, in February 1995, the veteran submitted a claim for, among other things, service connection for diabetes and hypertension, and in April 1995, submitted a statement which mentioned not only diabetes and hypertension, but also eye problems. VA outpatient treatment records dated from January to April 1995, submitted in support of the veteran’s then pending claims, contained diagnoses of diabetes, background diabetic retinopathy, and hypertension. The RO’s August 1995 decision lumped the matters of service connection for diabetes, hypertension and a visual problem into a single issue, and did not mention the July 1989 denial of service connection for an eye condition. The veteran’s July 1996 notice of disagreement expressed general disagreement with the August 1995 decision. The August 1996 statement of the case (SOC) continued to treat diabetes, hypertension, and visual problems as a single issue. By comparison, the veteran’s October 1996 substantive appeal treated hypertension, diabetes, and eye problems as distinct issues. However, by the time of the January 1998 RO hearing, the veteran espoused alternative theories regarding his eye problems, i.e., that his current eye problems represented either a clinical entity distinct from his diabetes, or a symptom of diabetes, first manifested at an April 1967 separation examination as cupping of his optic discs. [Transcript (Tr.) pp. 4-5, 8.] See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1 (1997) (compensable complications of diabetes mellitus are rated separately from diabetes unless they are part of the criteria used to support a 100 percent evaluation). Consequently, the record presents the questions of how to characterize the eye, hypertension, and diabetes issues on appeal. In short, there is no apparent reason for the RO’s melding of the hypertension and diabetes issues. Thus, the Board concludes that service connection for hypertension and service connection for diabetes are separate issues on appeal. As to the veteran’s claimed eye disorder, neither the August 1995 decision nor August 1996 SOC addressed the theory that the veteran’s current eye problems represent a clinical entity distinct from diabetes; that remains the subject of his open, 1989 claim. Therefore, with respect to the veteran’s claimed eye disorder, the Board only has jurisdiction over the matter of service connection for an eye disorder caused by diabetes. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. §§ 20.101, 20.200 (1997). Accordingly, the issues on appeal are entitlement to service connection for hypertension; diabetes mellitus with an associated eye disorder; and gastroesophageal reflux. The matter of the veteran’s entitlement to service connection for an eye disorder other than a diabetes related eye disorder is referred to the RO for appropriate action. Furthermore, the veteran’s February 1995 claim apparently sought service connection for disorders of his neck and shoulder, as well as a cholesterol problem. The RO has not adjudicated these claims. Likewise, the RO has not addressed the veteran’s claims of entitlement to service connection for a right leg disorder and a pinched nerve, as reflected in the veteran’s July 1996 notices of disagreement. These matters are referred to the RO for appropriate action. At a January 1998 hearing, claims of service connection for hearing loss, arthritis, dental disorders, and special monthly compensation were withdrawn from appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the veteran has diabetes and an associated eye disorder which were first manifested on his service separation examination as cupping of the optic discs. They also contend that the veteran has hypertension which is due to service. The representative contends that the Board should apply the benefit-of-the-doubt doctrine to the veteran’s claims. The representative also contends that if the Board finds that any claim is not well grounded, then the Board should determine whether the RO followed certain provisions of M21-1. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 service connection for hypertension and diabetes with an associated eye disorder are not well grounded. (The veteran’s claim of service connection for gastroesophageal reflux is the subject of the remand below.) FINDINGS OF FACT 1. No competent medical evidence has been submitted to show a link, or a nexus, between the veteran’s diabetes with associated eye disorder, and his period of military service. 2. No competent medical evidence has been submitted to show a link, or a nexus, between the veteran’s hypertension and his period of military service. CONCLUSIONS OF LAW 1. The veteran’s claim of entitlement to service connection for diabetes, with an associated eye disorder, is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309 (1997). 2. The veteran’s claim of entitlement to service connection for hypertension is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim on the merits. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. In order to establish a well-grounded claim of entitlement to service connection, the claimant must produce (1) medical evidence of a current disability; (2) lay or medical evidence that a disease or injury was incurred or aggravated in service; and (3) medical evidence of a link, or nexus, between the current disability and the in-service disease or injury. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (Table). This third element may be established by the use of statutory presumptions. Id.; see 38 C.F.R. §§ 3.307, 3.309 (1997). In the present case, the Board finds that the veteran’s claims of entitlement to service connection for diabetes with an associated eye disorder, and for hypertension, are not well grounded. His service medical records reveal that, on a March 1964 examination, no diabetes or hypertension was found. Opthalmoscopic examination was also normal. Urinalysis and serology were negative. Sitting blood pressure was 128/74. Distant vision was 20/20 bilaterally. A July 1965 examination contained identical findings, with the exception of sitting blood pressure, which was 120/80. A July 1965 dental record reflects a rubber-stamp on which the examiner could check any of several boxes; each box corresponded to a different disorder. Although there was a box for diabetes, it was unchecked; the only box checked was for “[n]egative.” At an April 1967 separation examination, the veteran’s opthalmoscopic examination revealed an abnormal, marked cupping of both optic discs, without increased pressure by ballotment. The visual fields were normal. No exudates, hemorrhages, or A-V nicking were found. Distant vision was 20/20 bilaterally. A corresponding clinical record reflects that the examiner noted no neurological findings, and normal extraocular movement. Although the examiner stated that the cupping was probably normal, he requested evaluation by the eye clinic; the referral was noted as routine. The eye clinic found the visual field normal by confrontation; negative fundi; and normal, physiological cupping. The separation examination report reflects a final diagnosis of marked optic disc cupping, bilaterally. The record does not reflect that the veteran had any complaint, treatment, or diagnosis of diabetes, eye problems, or hypertension until the late 1980’s. Particularly, private medical records of John D. Compton, Jr., M.D., dated from November 1987 to August 1980, include a November 1987 treatment record reflecting the veteran’s complaints of decreased visual acuity. Dr. Compton noted the veteran’s history of diabetes. The veteran told Dr. Compton that, when he got out of the Army in 1967, a “little speck” was found on each eye; that he was then sent to an eye clinic, where he was told that the optic nerve endings were closing and that nothing could be done about it. Dr. Compton’s diagnosis was cataracts. Dr. Compton’s November 1987 treatment records reflect the veteran’s report that another doctor had stated that his blood pressure was “borderline ? about 1979.” Follow-up treatment records from February 1988 reflect diagnoses of pseudophakia and mature cataracts. Operative notes dated later in February 1988 reflect that Dr. Compton performed a cataract extraction and intraocular lens insertion in each of the veteran’s eyes. A June 1989 treatment record reflects a notation of “no diabetic retinopathy apparent.” Private treatment records of Dr. Bruce Johnston, dated from February 1993 to February 1995, include a February 1993 assessment of hypertension and diabetes mellitus. A July 1994 treatment record reflects the veteran’s complaints of fatigue, pains, and shortness of breath. The diagnoses were good control of high blood pressure, fair control of diabetes mellitus, history of esophageal reflux, and possible angina. VA outpatient treatment records dated from January to May 1995 reflect the veteran’s complaints of problems with his eyes, and his treatment for diabetes and hypertension. In particular, an April 1995 eye treatment record reflects that the veteran had an old record from 1967 which gave a diagnosis of physiologic cupping, without quantifying the size of the cup to disc ratio. The VA examiner’s diagnoses included “P[rimary] O[pen-] A[ngle] G[laucoma], vs. physiologic cupping,” but the examiner did not relate this or any other diagnosis to the veteran’s service. The other pertinent diagnoses from the January to May 1995 VA treatment records were diabetes mellitus, NIDDM, hypertension, history of hypertension, peripheral neuropathy, history of peripheral neuropathy, and pseudophakia. An August 1995 VA general medical examination report reflects the veteran’s complaints of decreased visual acuity and occasional tingling in his lower extremities. It also reflects his history of diabetes mellitus, hypertension, and diabetic neuropathy, as well as the veteran’s report of having had an optic nerve injury during service. The assessment was multiple medical problems and possible diabetic neuropathy. Private hospitalization records of Providence Hospital from February 1996 reflect the veteran’s treatment for coronary artery disease (CAD), a heart catheterization, and a coronary artery bypass graft (CABG). The pertinent diagnoses were CAD, with recent myocardial infarction; heart catheterization; status post CABG, with associated procedures; NIDDM; history of hypertension; and history of cataract surgery. An undated report of a VA examination for housebound status or need of aid and attendance, received in April 1996, reflects the veteran’s complaints of diabetes and recent heart bypass surgery. The pertinent diagnoses were diabetes mellitus, peripheral neuropathy, CAD, a recent myocardial infarction, and CABG. June 1997 VA outpatient eye examination reports reflect the veteran’s complaints of decreased visual acuity and other eye problems. The diagnoses were proliferative diabetic retinopathy of both eyes, vitreal hemorrhage of the left eye, “CSDME” of both eyes, pseudophakia, retinitis of both eyes, and “PCIOL” of both eyes. None of the foregoing medical evidence reflects that any of the claimed disorders is related to an inservice disease or injury, including the April 1967 diagnosis of cupping of the optic discs. The veteran’s statements regarding the etiology of his disorders are not entitled to any probative value, because he is not shown to have any medical knowledge, training, or expertise. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, his statements cannot make his claims well grounded. Without medical evidence of such a link, the veteran’s service connection claims are not well grounded. In short, none of the medical evidence tends to show that the claimed disorders are related to military service. Moreover, there is no medical evidence that he had chronic hypertension or diabetes (with or without an associated eye disorder) manifested within one year of service. 38 C.F.R. §§ 3.307, 3.309 (1997). The representative contends, in his appellate brief, that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). He further contends that if the Board finds that the RO did not comply with these provisions, that the Board should remand the claim for “full development” of the claim. M21-1 Part VI, 2.10(f) provides that “the duty to assist will prevail while development is undertaken.” A careful reading of this provision clearly shows the initiation of this “development” is predicated on the claim being “potentially plausible on a factual basis.” Essentially, “potentially plausible on a factual basis” means the claim is well grounded. Caluza, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the veteran has presented a well-grounded claim. As the veteran has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that “[b]efore a decision is made about a claim being well-grounded, it will be fully developed.” However, only when a claim is well grounded does the VA have an obligation to assist the claimant in “developing the facts pertinent to the claim.” Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist provided by 38 U.S.C.A. § 5107(a)); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21- 1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim – as compared to development of the evidence underlying the claim – merely requires VA to ensure that the veteran has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts “concerning a well-grounded claim”); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if “a claim” is incomplete and requires “further development”). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit v. Brown, 5 Vet. App. 91 (1993), in which the Court stated that “[i]f the claim is not well grounded, the claimant cannot invoke the VA’s duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim.” Grottveit at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until a veteran has submitted a well-grounded claim, VA is under no duty to assist the veteran in establishing the evidentiary elements of his claim. In other words, the requirement to “fully develop” a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears to merely reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is “fully developed” under M21-1 Part III, 1.03(a) means that where the veteran’s application for benefits is incomplete, VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the veteran’s application is incomplete, or that he is aware of evidence which would render his claims well grounded, the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). The representative also contends that the veteran is entitled to the benefit of the doubt with respect to his claims. However, the benefit-of-the-doubt doctrine only applies if VA adjudicators reach the merits of the claim. As the veteran has not presented well-grounded claims, the Board does not reach the merits, and the benefit-of-the-doubt doctrine is inapplicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus the veteran’s claims must be denied. ORDER Service connection for hypertension and for diabetes with an associated eye disorder is denied. REMAND The veteran and his representative contend that the veteran has gastroesophageal reflux which was aggravated by service. Indeed, the Board notes that, although the July 1965 entrance examination reflects a finding of “occasional indigestion – no apparent problem,” and the examiner found no evidence of a hernia, subsequent service medical records reflect frequent epigastric problems, and an October 1965 x-ray report revealed a small hiatus hernia. Moreover, the April 1967 separation examination report reflects a diagnosis of probable “chronic” gastritis. Under these circumstances, a remand is warranted for an examination to determine the etiology of the veteran’s current problem. 38 C.F.R. § 19.9 (1997); see Myers v. Brown, 5 Vet. App. 3, 4 (1993). Prior to such examination, certain medical records need to be obtained, as reflected in the indented remand instruction paragraphs, infra, and the claims file needs to be made available to the examiner. This case is REMANDED for the following actions: 1. The RO should assist the veteran in obtaining the following evidence of private treatment for gastroesophageal reflux: the treatment records of Bruce S. Johnston, M.D., dated prior to February 1993, as mentioned in Dr. Johnston’s February 15, 1993 treatment record; the February 18, 1993 emergency room treatment record, as mentioned in Dr. Johnston’s February 19, 1993 treatment record; the 1992 and February 19, 1993 treatment records of Dr. Ramage, as mentioned in Dr. Johnston’s February 26, 1993 treatment record and the January 1998 RO hearing [Tr. pp. 6- 7]; and the records of the veteran’s treatment in 1992 and late 1997 at the Self Memorial Hospital emergency room, as mentioned in the RO hearing [Tr. pp. 6, 7]. The RO should also obtain records of the veteran’s ongoing treatment by his VA doctor in Greenville, from May 1995 to date, as mentioned in the RO hearing [Tr. p. 7]. All material obtained should be associated with the claims file. 2. Thereafter, the RO should schedule the veteran for a gastrointestinal evaluation to determine the etiology of his epigastric complaints. The examiner should review the claims file, examine the veteran, and provide an opinion as to whether it is at least as likely as not that any disorder found is attributable to the appellant’s military service or was chronically or permanently worsened by his period of active service. 3. After the foregoing has been completed, the RO should take adjudicative action on the appellant’s claim of service connection for gastroesophageal reflux. If any benefit sought remains denied, the RO should issue supplemental statement of the case (SSOC). The SSOC should contain a recitation to the laws pertaining to service connection based upon aggravation of diseases or injuries that pre-existed service, if applicable. See 38 C.F.R. § 3.306 (1997). After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder shall be returned to this Board for further appellate review. No action is required by him until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997). - 2 -