Citation Nr: 9806416 Decision Date: 03/04/98 Archive Date: 03/20/98 DOCKET NO. 95-39 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for an upper gastrointestinal disorder, to include ulcers as secondary to a service-connected back disability. 2. Entitlement to service connection for a psychiatric disorder. 3. Entitlement to service connection for fatigue with weakness, and loss of strength in the lower extremities. 4. Entitlement to service connection for a disability manifested by loss of sensation. 5. Entitlement to an increased evaluation for residuals of a compression fracture of the thoracic spine at T-8, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew P. Hinton, Associate Counsel INTRODUCTION The veteran had active service from February 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York (RO), which denied the benefits sought on appeal. The veteran appealed that decision to the BVA, and the case has been received at the Board. The veteran testified at a Travel Board hearing held at the RO in August 1997. At that time he submitted additional evidence and waived RO consideration of such evidence. 38 C.F.R. § 20.1304(c) (1997). He also withdrew the issues of entitlement to service connection for hypertension, a kidney disorder, a skin disorder, headaches, and a disorder involving violent behavior from appellate consideration. This decision, accordingly, will be limited to the issues noted on the preceding page. During the August 1997 hearing, the veteran raised a claim for a permanent and total disability rating for pension purposes. That issue is referred to the RO for appropriate action. The issues of increased evaluation for residuals of a compression fracture of the thoracic spine at T-8; and for service connection for a gastrointestinal disorder; fatigue with weakness and loss of strength in the lower extremities; and a disability manifested by loss of sensation, will be addressed in the remand that follows the present Board decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he developed a psychiatric disorder to include depression and a sleep disturbance due to service. Reference is made to the evidence of record as supporting this contention. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 has not presented evidence of a well grounded claim for service connection for a psychiatric disorder. FINDING OF FACT There is no competent medical evidence of record of a nexus between the veteran’s claimed psychiatric disorder and active service. CONCLUSION OF LAW The veteran has not presented evidence of a well grounded claim for service connection for a psychiatric disorder. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for diseases or injuries incurred or aggravated while in active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1997). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(c) (1997). Continuity of symptomatology is required where a condition noted in service is not, in fact, shown to be chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1997). Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). 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 (1997). Secondary service connection may also be granted for the degree of aggravation to a nonservice-connected disorder which is proximately due to or the result of a service- connected disorder. Allen v. Brown, 7 Vet. App. 439, 448-50 (1995). To establish that a claim for service connection is well grounded, a veteran must present medical evidence of a current disability; medical evidence, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, No. 97- 7014, slip op. at 9 (Fed. Cir. Oct. 7, 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under he court’s case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, U. S. Vet. App. No. 94-503 (Nov. 5, 1997). Service medical records do not contain any record of complaints, findings or diagnoses referable to a psychiatric disorder. In August 1993, the veteran underwent VA examination pertaining to Agent Orange evaluation. At that time he listed related complaints of anger, depression and nerves, reportedly for years since just after service in Vietnam. The examination report contains a diagnosis of anxiety depression. The examiner did not link the veteran’s psychiatric disorder to service. The record does not contain any other findings or diagnosis referable to a psychiatric disorder, or other evidence of pertinent treatment. In light of the foregoing evidence of record, the Board finds no competent medical evidence of record of a nexus, or link, between any current psychiatric disorder and service. Furthermore, the only evidence of a definite diagnosis of any psychiatric disorder, that of anxiety depression, is contained solely in the above discussed August 1993 VA examination report. This diagnosis, however, is not accompanied by any clinical findings or indications that the veteran underwent a psychiatric examination, and the diagnosis appears to be based solely on history given by the veteran. It is also not supported by the objective evidence of record that shows no evidence of any psychiatric treatment or findings either during service or at any time since. Thus, this diagnosis constitutes no more than a transcription of a lay history, and therefore is not thereby transformed into competent medical evidence of a current psychiatric disability related to service. See Guimond v. Brown, 6 Vet. ore v. Brown 8 Vet. App. 406 (1995). The above noted diagnosis of anxiety depression was made during an Agent Orange examination, and the record indicates a suggestion of a relationship between that diagnosis and putative exposure to Agent Orange in service. The Board notes, however, that the veteran’s purported psychiatric disorder is not recognized by the VA as one causally related to exposure to herbicide agents used in Vietnam. 38 C.F.R. § 3.309(e) (1997). Thus, even assuming that the veteran had a psychiatric disorder, a relationship to service pursuant to exposure to Agent Orange could not be presumed under relevant regulation, 38 C.F.R. § 3.307(a), nor is there any other evidence of record purporting to substantiate such a relationship. Regarding the veteran’s assertions that he has a psychiatric disability related to service, as discussed above, lay statements are not competent to prove a matter requiring medical expertise, such as a diagnosis or opinion as to medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Therefore, his statements, alone, without supporting medical evidence, are insufficient to render his claim well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (lay assertions of medical [etiology] cannot constitute evidence to render a claim well grounded under section 5107(a)); Robinette, 8 Vet. App. at 75-76 (evidentiary assertions may not be accepted as true when the fact asserted is beyond the competence of the person making the assertion). Accordingly, the veteran’s claim for service-connection for a psychiatric disorder to include depression and sleep disturbance must be denied. Finally, the Board views its discussion above, together with the statement of the case and other information provided by the RO, sufficient to inform the veteran of the elements necessary to complete his application regarding the issue discussed above, pursuant to 38 U.S.C.A. § 5103(a), and the veteran has not referred to the existence of any potentially relevant evidence which has not been obtained which would render his claim plausible. Epps v. Brown, 9 Vet. App. 341, 344 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). A well grounded claim must be supported by evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of competent medical evidence to support the veteran’s claim, the VA has no further duty to assist the veteran in developing the record regarding the issue discussed above. See Epps v. Gober, No. 97-7014, slip op. at 10-11, (Fed. Cir. Oct. 7, 1997) (“there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a well grounded claim.”) The Board recognizes that this appeal is being disposed of in a manner that differs from that utilized by the RO. The RO denied the veteran’s claim on the merits, while the Board has concluded that the claim is not well grounded. However, the Court has held that “when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well grounded analysis.” Meyer v. Brown, 9 Vet. App. 425, 432 (1996). ORDER Service connection for a psychiatric disorder is denied. REMAND The veteran contends that the evaluation assigned for his service-connected residuals of a compression fracture of the thoracic spine at T-8 does not accurately reflect the severity of the disability and that his back disability has become progressively worse. He further contends that he has fatigue with weakness, and loss of strength in the lower extremities; and has loss of sensation in both upper and lower extremities, suggesting a neurological disorder. He claims that these latter disorders are related to his service connected back disability. The Board would be aided by orthopedic and neurological examinations to determine the current severity of his service connected back disability, and as to the relationship, if any, of that disability to any claimed symptomatology found on examination manifested by fatigue with weakness, loss of strength in the lower extremities, or loss of sensation. In this regard, the Board notes that the most recent examination of the veteran’s back disability was in September 1993. Since then a substantial number of pertinent clinical records have been generated and associated with the claims folder before the Board for review. Most recently, the veteran provided additional medical records from the VA Medical Center in Syracuse, New York, for which he waived RO consideration. Those records generally show continued treatment including for related back symptomatology. An August 1996 VA clinical note indicated that the veteran had complaints of chronic spine pain in the area of T5-L5, secondary to his fractured T8, and that the veteran had decreased sensation in his feet and legs. It is important that a disability be evaluated in light of its history. 38 C.F.R. §§ 4.1, 4.2 (1995). The Board believes that a more contemporaneous examination, which includes consideration of any recent records, may be helpful in resolving the issue of the current severity of the veteran’s service-connected back disability. Further, the Board finds that some clarification is necessary as to the presence and etiology of any currently claimed neurological disorder, including any relationship to the veteran’s service-connected back disability. See Perry v. Brown, 9 Vet. App. 2, 6 (1996) (VA is obligated to develop relevant evidence which may include medical examinations). The veteran also claims entitlement to service connection for a gastrointestinal disorder manifested by abdominal pain and nausea. He asserts, in part, that his upper gastrointestinal disability is etiologically related to the treatment he has received for his service-connected back disability. The relevant evidence is summarized below. Service medical records indicate that during the veteran’s two years of service, he was seen only once, in July 1969, for any gastrointestinal complaints. He was seen at that time for an upset stomach. At discharge the veteran gave a history of having had pain in his chest, but reported he had not had any stomach trouble. During the discharge examination in January 1970, evaluation of the abdomen was normal. VA medical records reveal that in March 1983, over thirteen years after service separation, the veteran was seen for complaints which were diagnosed as possible esophageal motility disorder. A December 1986 clinical record contains a diagnosis of possible viral syndrome/reflux. A subsequent record that month contains a diagnosis of esophageal reflux. Private medical records indicate that in September 1992, the veteran was assessed as having gastroenteritis. Subsequent VA medical records contain diagnoses of small hiatal hernia with gastroesophageal reflux disease, mild gastritis, and short segment Barrett’s esophagus. It was noted in May and December 1995 that he “NSAID gastroduodenopathy.” Clinical and laboratory evaluations in 1995 and 1996 revealed erosive esophagitis. He was examined in February 1996, at which time findings noted the veteran to have intestinal metaplasia and atypia bordering on low-grade dysplasia, suggesting that this was a short segment Barrett’s esophagus. The June 1996 endoscopy report includes findings that the esophagus was entirely normal, without gross evidence of Barrett’s mucosa or erosions or ulcerations. Also, there was a 3-4 cm hiatus hernia. Mild diffuse gastritis was noted but without erosions or ulcers. The duodenal bulb manifested multiple superficial non-bleeding erosions. The descending limb was normal. Biopsies were taken at the gastroesophageal junction and at the fundus. The resulting impressions were: (1) gastroesophageal reflux disease; (2) grossly normal esophagus at endoscopy; (3) hiatus hernia; and (4) duodenal erosions. Pathology findings included mild fundal gastritis and gastroesophageal junction intestinal metaplasia and chronic inflammation. The veteran was seen in October 1996, at which time he was assessed with gastroesophageal reflux disease, still with some symptoms of heartburn. It is clear that the veteran has upper gastrointestinal pathology. The etiology or etiologies of his variously diagnosed disorders is not clear but there is some indication that nonsteroidal antiinflammatory medication may have had a causative role. In view of the secondary service connection question presented, an adequate VA examination includes an opinion on medical causation. Moore v. Derwinski, 1 Vet. App. 401 (1991). It is the Board's judgment that, given the nature of the veteran’s claim for secondary service connection and the absence of an opinion that has squarely addressed this question, another examination is required in which the doctor reviews all records and addresses the question of the etiology of the veteran’s upper gastrointestinal disorders. 38 C.F.R. § 4.2 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). The RO should also address the applicability of Allen v. Brown, 7 Vet. App. 439 (1995) (secondary service connection based on aggravation). Therefore, in order to give the veteran every consideration with respect to the present appeal, the case is REMANDED to the RO for the following action: 1. The RO should contact the appellant and ask him to furnish the names and addresses of all private medical personnel and facilities from whom he received examinations and/or treatment for his back condition, fatigue, weakness, loss of strength and loss of sensation, from 1993 until the present. After obtaining the necessary authorization from the appellant, the RO should obtain available records from the named sources. 2. The veteran should be afforded VA orthopedic and neurological examinations to determine the current severity of his service-connected residuals of a compression fracture of T-8. The examination should include full range of motion studies of the thoracolumbar spine, as well as any other tests that are deemed necessary. The orthopedic examiner should determine whether the thoracic spine exhibits weakened movement, excess fatigability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. The examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. (It is essential that the examination adequately portray the degree of functional loss. 38 C.F.R. §§ 4.40, 4.45 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiners should be requested to determine the nature, extent, and etiology of all disability resulting from the veteran’s service-connected thoracic spine disability, including any disability manifested by fatigue, weakness/loss of strength and loss of sensation.. The examiners are specifically requested to offer an opinion, with full rationale, as to whether the veteran currently has any disorder manifested by fatigue, or loss of strength or sensation, particularly in the extremities, and if so, whether it is at least as likely as not that such disorder(s) were caused or aggravated by the veteran’s service-connected residuals of a compression fracture of the thoracic spine at T-8, or whether it is due to some unrelated cause, be it disease or injury. The complete rationale for each opinion expressed must be fully set forth. The claims file in its entirety must be made available to the examiners for review. 3. The veteran should be afforded a VA gastrointestinal examination for the purpose of determining the etiology and extent of all upper gastrointestinal disorders. All indicated diagnostic studies should be accomplished. The claims file should be made available to the examiner for review. The examiner should note the veteran’s medication history, including all drugs used in treating his service-connected back disability, and opine whether is at least as likely as not that the upper gastrointestinal disorders that are demonstrated were caused or aggravated by treatment for his back disorder. The complete rationale for each opinion expressed must be fully set forth. 4. The RO should thereafter review the requested reports to determine if they are in compliance with this remand. If they are not, they should be returned, along with the claims file, for immediate corrective action. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence he desires to have considered in connection with his current appeal. R. F. WILLIAMS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 -