Citation Nr: 9911621 Decision Date: 04/29/99 Archive Date: 05/06/99 DOCKET NO. 96-28 055 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for coronary artery disease. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a disorder of the eyes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mark E. Goodson, Associate Counsel INTRODUCTION The veteran had verified active duty from December 1943 to October 1945. He was a prisoner of war (POW) of the German government from July 1944 to April 1945. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 1996 decision by the RO that denied service connection for coronary artery disease, diabetes mellitus, hypertension, and an eye condition. FINDINGS OF FACT 1. Although the veteran experienced localized swelling during his period of captivity as a POW and years later was found to have coronary artery disease, the coronary artery disease did not begin as a result of military service, including POW experiences. 2. No competent medical evidence has been submitted to show a link, or a nexus, between the veteran's diabetes mellitus and his period of military service. 3. 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. 4. No competent medical evidence has been submitted to show a link, or a nexus, between any disorder of the veteran's eyes and his period of military service; optic atrophy associated with malnutrition has not been demonstrated. CONCLUSIONS OF LAW 1. The veteran does not have coronary artery disease that is the result of disease or injury incurred in or aggravated by military service; coronary artery disease may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). 2. The veteran's claim of entitlement to service connection for diabetes mellitus 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 (1998). 3. 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 (1998). 4. The veteran's claim of entitlement to service connection for a disorder of the eyes is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered is whether the veteran has presented well-grounded claims. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A well- grounded claim is defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Section 5107 provides that the claimant's submission of a well-grounded claim gives rise to VA's duty to assist and to adjudicate the claim. In short, VA is not required to adjudicate a claim on the merits until after the veteran has met this initial burden of submitting a well-grounded one. Boeck v. Brown, 6 Vet. App. 14 (1993). "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the context of a claim of entitlement to service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service or to an already service connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In short, in order to establish a well-grounded claim, 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); accord, Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. den. sub nom. Epps v. West, 118 S.Ct. 2348 (1998). This third element may be established by the use of statutory presumptions. Caluza, supra. For example, if a veteran is a former POW, and, as such, was interned or detained for not less than 30 days, certain diseases (including beriberi heart disease or optic atrophy associated with malnutrition) shall be service connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. §§ 1110, 1112(b), 1113 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.1(y), 3.307(a)(5), 3.309(c) (1998). (The term "beriberi heart disease" includes ischemic heart disease in a former POW who experienced localized edema during captivity. 38 C.F.R. § 3.309(c) (1998).) In the present case, the veteran has coronary heart disease which is an ischemic process for which service incurrence or aggravation may be presumed if localized edema was experienced during captivity. § 3.309(c). Although the veteran reported having experienced swelling of the legs or feet, swelling of the joints, and swelling of the muscles during captivity, which appears to be indicative of edema contemplated by § 3.309(c), see January 1989 POW evaluation report, specific medical opinion evidence has been made a part of the record which rebuts the presumption of service incurrence. Reports prepared by VA examiners in February and March 1996 include detailed reasons for the medical conclusion that the veteran's ischemic disease was not related to his POW experience. Other risk factors were noted, including the veteran's age, size, and other medical problems. The examiners also noted that no problem with heart disease was shown until many years after service. Even after a review of the available record, which apparently included the January 1989 evaluation report of swelling in captivity, it was specifically opined that coronary heart disease was not attributable to military service. Consequently, the Board finds that such well measured medical opinions constitute sufficient evidence to rebut the presumption of § 3.309(c). In other words, this evidence is of the type that, based on sound medical reasoning and in consideration of all the record, strongly supports a conclusion that the disease was not incurred in or aggravated by service. 38 C.F.R. § 3.307(d) (1998). The Board therefore concludes that the presumption of § 3.309(c), the operation of which leads to a finding that the claim is well grounded, has nevertheless been rebutted by medical opinion evidence based on sound principles and a review of the entire record. Id. It is also significant that coronary artery disease was not manifested within one year of the veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a) (1998). The preponderance of the evidence is against this claim. Turning to the other claims of service connection, the Board notes that the veteran has not produced any medical evidence of a link, or nexus, between diabetes mellitus, hypertension, or disorder of his eyes, and any disease or injury incurred in or aggravated by service. Moreover, none of these diagnosed disabilities for which the veteran seeks service connection are among the diseases specific as to POWs listed in 38 C.F.R. § 3.309(c), so his claims of service connection on that presumptive basis are not well grounded. See Brock v. Brown, 10 Vet. App. 155, 162 (1997) (plausible medical evidence of the existence of a current presumptively service- connected disease with an open-ended presumptive period held sufficient to well ground a service connection claim based on theory of herbicide exposure). Although optic atrophy associated with malnutrition is among the listed diseases, there is no indication in the record that the veteran experiences such a problem. Additionally, no medical evidence has been presented to show that hypertension or diabetes was manifested within a year of the veteran's separation from service. 38 C.F.R. § 3.309(a) (1998). There is also no medical evidence linking any complaints of continuity of pertinent symptomatology to a current disability. 38 C.F.R. § 3.303(b) (1998); Savage v. Gober, 10 Vet. App. 489, 494-95, 497 (1997). There is no evidence linking, in whole or in part, diabetes, hypertension or eye disability to an already service-connected disability, see 38 C.F.R. § 3.310, Libertine v. Brown, 9 Vet. App. 521 (1996), and Allen, supra. Therefore, his claims of entitlement to service connection for diabetes, hypertension and a disorder of the eyes are not well grounded, and VA has no duty to assist him pursuant to 38 U.S.C.A. § 5107 in the development of the facts pertinent to such claims. Thus, even accepting as true the veteran's account of his POW and combat experiences during service, see King v. Brown, 5 Vet. App. 19, 21 (1993), the Board nevertheless finds that evidence sufficient to make his diabetes, hypertension, and eye claims well grounded has not been submitted. See 38 U.S.C.A. §§ 1112, 1154(b) (West 1991 & Supp. 1998); Arms v. West, 12 Vet. App. 188 (1999)(application of Section 1154(b) on the question of well groundedness is largely superfluous). While the veteran is certainly competent to provide testimony regarding the occurrence of an in-service event or injury, such as parachuting from an exploding airplane or exposure to cold and other deprivations associated with POW status, see Murphy, supra, and Goss v. Brown, 9 Vet App 109 (1996), there is no indication in the record that he has the medical expertise necessary to conclude that his current problems can be attributed to service. Id. Although he has described the nature of his current difficulties, there has been no submission of evidence by competent authority that any claimed disorder can be attributed to military service. 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), prior to denying the service connection claims. He further contends that, if the Board finds that the RO did not comply with these provisions, that the Board should remand the claims for "full development" of the claims. As for the coronary artery disease claim, the Board notes that the RO specifically sought medical opinions as to the etiology of this disease process and thereby complied with the duty to assist the veteran. (The representative's arguments regarding M21-1 as it might affect the other three issues is discussed below.) 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 v. Brown, supra; accord, 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 as to the diabetes, hypertension and eye disorder claims, 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, 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 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 United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (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 the diabetes, hypertension or eye claims well grounded, the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). Moreover, the veteran was afforded a POW examination in January 1989 and a January 1996 VA examination as to the etiology of his heart disorder(s) (as reflected by the February and March 1996 addenda to the report of the January 1996 examination). See 38 C.F.R. § 3.326(b) (1998). Thus, in this respect, the representative's contention is inapposite. The representative also contends, in his appellate brief, that the holding of Ledford v. West, 136 F.3d 776 (1998) is unreasonable and erroneous, because it "requires" appellants to foresee and argue preemptively all errors the Board might commit, and because the appellant has no prior notice of the points upon which the Board will rely when deciding an appeal. However, Ledford does not stand for this proposition. In Ledford, The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the doctrine of exhaustion of administrative remedies requires an appellant to present issues at the administrative (RO and Board) level before the Court and the Federal Circuit will address those issues. 136 F.3d at 779-82. In any event, the Court bars the type of litigation by ambush which the representative eschews. See, e.g., Marsh v. West, 11 Vet. App. 468, 471-72 (1998). Here, the RO did not discuss the well groundedness of the veteran's claims, although the May 1996 statement of the case notified the veteran of the need to submit evidence which would render his claims well grounded, citing 38 U.S.C.A. § 5107. However, when an RO does not specifically address the question of whether a claim is well grounded, but instead, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded-claim analysis. Meyer v. Brown, 9 Vet. App. 425, 432 (1996). That proposition applies even where the RO has failed to provide the claimant with the laws and regulations pertaining to well-grounded claims, and notwithstanding that the Board denies the claim as not well grounded after the RO adjudicates the claim on the merits. Id. That is because the requirement that a claim be well grounded is merely a threshold matter, and its satisfaction does not, by itself, obtain anything for a claimant that he would not receive in a full merits adjudication. Id. Thus, the representative's contention here is inapposite. The representative contends that the Meyer decision, supra, ignores the statutory provision that claimants have the initial burden of submitting a well-grounded claim "[e]xcept when otherwise provided by the Secretary [of VA]," 38 U.S.C.A. § 5107(a), because the Secretary has provided such an exception via the promulgation of the aforementioned portions of M21-1. The representative's argument lacks merit because the portions of M21-1 to which he refers do not create an exception to 38 U.S.C.A. § 5107, as previously discussed. In reaching the foregoing conclusions, the Board has considered that the RO did not issue a supplemental statement of the case (SSOC) after November 1996. However, a SSOC would only have been required in the event that evidence received since the November 1996 SSOC was pertinent and not duplicative. See 38 C.F.R. § 19.31, 19.37 (1998). The evidence submitted since November 1996 was essentially duplicative of the evidence already of record at that time in the sense that no medical nexus evidence was submitted. Therefore, the Board's adjudication of the veteran's claims in the absence of a post-November 1996 SSOC is not prejudicial to the veteran. ORDER The veteran's claim of entitlement to service connection for coronary artery disease, diabetes mellitus, hypertension, or disorder of his eyes is denied. MARK F. HALSEY Member, Board of Veterans' Appeals