Citation Nr: 9907220 Decision Date: 03/18/99 Archive Date: 03/24/99 DOCKET NO. 96-39 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for cerebral aneurysm. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty for training from April 1974 to September 1974 and on active duty from May 1977 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1994 decision of the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claim of service connection for a head disability (characterized as cerebral aneurysm). Thereafter, a statement of the case was issued that referred to service connection for a "head condition." However, in light of the argument made on appeal, including clarification from the veteran presented at a hearing held in August 1995, the Board finds that the issue on appeal is best characterized as entitlement to service connection for cerebral aneurysm. FINDING OF FACT No competent medical evidence has been submitted showing that a cerebral aneurysm is attributable to military service or events coincident therewith. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim of entitlement to service connection for a cerebral aneurysm. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran and his representative contend that the veteran's right and left subarachnoid hemorrhages of the posterior communicating arteries were due to cerebral aneurysms that were brought about by his military service. Specifically, they allege that the veteran sustained two head injures while in military service - in December 1977 he was in a motor vehicle accident and stuck his head and in May 1978 he was in a fight when he was struck in the head with a piece of wood. They assert that these in-service head injuries caused aneurysms. It is also requested that the veteran be afforded the benefit of the doubt. 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 in developing the facts pertinent to the 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. 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). 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 v. Derwinski, 1 Vet. App. 78, 81 (1990). 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. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in-service injury or disease and current disability. This third element may also be established by the use of statutory presumptions. 38 C.F.R. § 3.307, 3.309 (1998); See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A review of the veteran's service medical records reveals that, in December 1977, he was involved in a motor vehicle accident and thereafter complained of cervical spine pain. (The service medical records are negative for complaints, diagnosis, or treatment for a head injury sustained in the motor vehicle accident.) A May 1978 treatment record shows that the veteran had been struck in the left eye with a piece of wood during a fight. On examination, his pupils were equal and round, and reactive to light, with no swelling seen around the left eye. The service medical records, including March 1974, July 1975, June 1977, and November 1978 examinations, as well as a November 1978 medical board examination, are otherwise negative for complaints, diagnoses, or treatment for head trauma or brain disease. The Board notes that the record on appeal also includes VA treatment records, dated from November 1979 to October 1996; VA examination reports, dated in November 1979 and September 1995; and the veteran's testimony at a August 1995 personal hearing. Initially, the Board observes that, at the veteran's first post-service VA examination, conducted in November 1979, cranial nerves were within normal limits and no brain dysfunction or problem was noted. The Board also observes that a July 1980 VA hospitalization record shows no problem identified as cerebral aneurysm or other brain difficulty. Thereafter, beginning in November 1980, VA treatment records show the veteran's complaints of headaches, blurred vision, dizziness, numbness, weakness (in the left side and/or lower extremities), photophobia, and/or nausea. The diagnoses, beginning in November 1980, included right and/or left sided subarachnoid hemorrhage because of an aneurysm. (The Board notes that, while both a November 1980 head computerized tomography (CT) scan and skull X-rays were normal (no sign of bleeding), a December 1980 electroencephalogram (EEG) was irregular (bilateral cerebral dysfunction) and a December 1980 angiogram reportedly showed right and left sided subarachnoid hemorrhage.) In December 1980 the veteran underwent a clipping of the right posterior communicating artery. The records thereafter show repeated hospitalization and treatment for continued complaints of headaches, skull pressure, jaw tightness, blurred vision, nausea, dizziness, right sided weakness, falling to the right, a stutter, confusion/impaired memory, weight loss, blackouts, photophobia, light headedness, facial pain, difficulties opening his mouth, and/or seizures. They also show his complaints, diagnosis, and/or treatment for a left sided subarachnoid hemorrhage. Because the left sided problems were less severe (testing in November 1980 showed a 3-5 mm aneurysm and testing in March 1986 showed a 4-5 mm aneurysm) they were treated with a more conservative drug therapy. The Board also notes that November 1981 and December 1981 neurological examiners reported, after reviewing a CT scan that showed left sided cerebral bleeding, that the veteran had a subarachnoid hemorrhage of "unknown etiology." It was opined that a atriovenous malformation (AVM) was very unlikely, and stated that the hemorrhage was most probably due to an aneurysm. Additionally, the Board notes that the treatment records also show the veteran's complaints, diagnoses, and/or treatment for psychiatric disorders secondary to the hemorrhages and/or treatment therefor. The diagnoses include a personality disorder, major affective disorder, major depression, and major depression with psychotic features as well as cerebral impairment. See VA treatment records and VA hospitalization summaries dated in March 1984, April 1984, February 1988, September 1996, and October 1996. The veteran appeared at a personal hearing before the RO in August 1995. He testified that, while in service, he sustained two head injuries. In November 1977 he was involved in a motor vehicle accident and in May 1978 he was involved in a fight and struck on the head with a piece of wood. He reported that, following the motor vehicle accident, he had chronic headaches. However, his headaches were treated with aspirin and no special testing was performed. Following service, he continued to have a problem with chronic headaches. He reported that, while he could not remember when he first started receiving treatment after service for his various brain problems, he did recall that he was first hospitalized on Thanksgiving. His current symptoms include headaches and seizures. Lastly, the veteran testified that he was currently receiving Social Security Administration disability and that all of his treatment was obtained from the VA Medical Centers (VAMCs) in the Bronx and Manhattan. At a September 1995 VA disease/injury to the brain examination the veteran was diagnosed as status post cerebral aneurysm in 1980 with surgical clipping and subarachnoid hemorrhage; a second aneurysm noted in the left posterior communicating artery which was being followed conservatively; seizure disorder secondary to the right aneurysm and surgery; and left upper extremity weakness likely secondary to the cerebral aneurysm. Additionally, the veteran's September 1995 VA mental disorder examiner noted that a "berry aneurysm is not a tumor and is generally considered a congenital malformation." What is significant about the evidence described above is, paradoxically, what it does not include. None of the records on appeal includes a medical nexus opinion that tends to show a relationship between any cerebral aneurysm and military service. Likewise, no medical opinion has been presented that tends to show a relationship between any claimed disability and the veteran's complaints of continued symptoms since service. Evidence showing a medical diagnosis more than a year following the veteran's release from military service is not helpful to the veteran's claim of service connection, except that such evidence does indeed confirm that the veteran experiences current disability. Caluza, supra; §§ 3.307, 3.309 (when a veteran served ninety days or more during a period of war or during peacetime service on or after January 1, 1947, and a brain hemorrhage or brain thrombosis is manifested to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service). Because the veteran was first diagnosed with right and left sided subarachnoid hemorrhages due to aneurysms more than one year after his separation from service, the one-year presumption does not aid the veteran in his attempt to submit a well- grounded claim. The Board has considered the contentions of the veteran made through testimony at his personal hearing, through written statements filed with the RO, and through statements to physicians. However, these statements do not provide the requisite medical nexus. While the veteran is competent to provide information as to the visible symptoms he experienced during and after service, he has not been shown to be competent to provide the medical opinion evidence necessary to make his claim of service connection well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993) (persons without medical expertise are not competent to offer medical opinions); Grottveit v. Brown, 5 Vet. App. 91 (1993); Bostain v. West, No. 97-62 ( U.S. Vet. App. Mar. 25, 1998). Furthermore, the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion. LeShore v. Brown, 8 Vet.App. 406 (1995); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). It has also been suggested 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). The provisions of M21-1 Part VI, 2.10(f) provide 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. Epps, 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 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 under 38 U.S.C.A. § 5107(a)); Epps, supra; 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 demands that VA 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, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). Therefore, contrary to the veteran's representative's contentions in the February 1999 informal hearing presentation, the Board has no duty to assist the veteran in developing his claim, including sending the record out for review by an independent medical expert. Therefore, because no competent medical evidence has been presented to link currently diagnosed problems to service, his claim is not well grounded. The representative has also requested consideration of reasonable doubt; however, this principle does not apply until the veteran has submitted a well-grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for cerebral aneurysm is denied. MARK F. HALSEY Member, Board of Veterans' Appeals - 9 - - 1 -