Citation Nr: 9915190 Decision Date: 05/28/99 Archive Date: 06/07/99 DOCKET NO. 95-32 943A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from November 1972 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision by the RO that denied a claim of entitlement to service connection for a heart disorder. FINDING OF FACT No competent medical evidence has been presented to link a heart disorder, which was first clinically shown more than a year after military service, to the veteran's period of service. CONCLUSION OF LAW The veteran's claim of service connection for a heart disorder is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran claims that her heart disorder existed during military service, and that in-service symptoms were prodromal manifestations of her present disability. She maintains that her heart disorder is a direct result of untreated hypertension in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1998); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1998). 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 her in developing the facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (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 that 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); Murphy v. Derwinski, 1 Vet. App. 78 (1990). 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. 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 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 the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. For certain chronic diseases, such as cardiovascular-renal disease, including hypertension, service incurrence or aggravation will be presumed when the disability is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). However, this presumption is a rebuttable one. Id. Based on a review of the evidence, the Board finds that the veteran's claim of service connection for a heart disorder is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Service medical records, including the veteran's pre-enlistment examination report in October 1972 and separation examination report in October 1975, are negative for a diagnosis pertaining to any heart disorder. The veteran was seen for complaints of chest pain on one occasion in June 1973, when she reported having a cold and sore throat. She also complained of having chest pains while coughing. No heart disorder was noted. There were also no elevated blood pressure readings noted. A heart disability was not shown by competent medical diagnosis until many years after the veteran's separation from service. The record shows that the veteran was seen for problems with atrioventricular (AV) block and was found to have hypertension beginning in 1982. Private treatment records, dated from October 1988 to November 1996, show that, in January 1992, the veteran was hospitalized for heart problems. The discharge diagnoses included history of hypertension, electrocardiogram with first degree AV block, one episode of Mobitz II second degree AV block, and a history of questionable complete heart block. At a VA examination in November 1993, the veteran gave a history of having had third degree heart block in 1982, and most recently in April 1990. Examination of the heart revealed a regular rate and rhythm without murmur, gallop, or rubs. The assessments included history of third degree heart block, hypertension, and drop attacks, probably secondary to third degree heart block. None of the examiners, VA or private, provided an opinion regarding the onset of the veteran's heart disorder. The veteran has not presented any competent medical evidence to show a link between any current heart disorder and her period of military service. The Board has considered the veteran's written statements and August 1996 testimony regarding the onset of a heart disorder. However, while she is competent to provide information regarding the symptoms she currently experiences and has experienced since her military service, there is no indication that she is competent to diagnose a heart disorder or to comment upon its etiology or time of onset. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494-95. Moreover, no evidence has been presented to show that any cardiovascular disease was manifested within a year of the veteran's separation from service. As a result, she is not aided in her attempt to submit a well-grounded claim by the presumptions of 38 C.F.R. §§ 3.307, 3.309 (1998). Consequently, absent the presentation of competent medical evidence showing a link between post-service diagnoses and service, or complaints of heart problems since service, the veteran's claim may not be considered well grounded and must be denied. It has also been contended on the appellant's behalf 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 appellant has presented a well-grounded claim. As the appellant 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 appellant 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, supra, 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, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of her 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 merely to 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 appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant's application is incomplete, or that she is aware of evidence which would render her claim well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for a heart disorder is denied. MARK F. HALSEY Member, Board of Veterans' Appeals