On appeal from the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky
THE ISSUES
1. Entitlement to service connection for a hiatal hernia.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
3. Entitlement to an increased evaluation for duodenal ulcer
disease, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
ATTORNEY FOR THE BOARD
L. J. Nottle, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1966 to June 1968.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from June 1994 and November 1995 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office in Louisville, Kentucky (RO), which denied the veteran
service connection for a hiatal hernia and for PTSD, and
granted service connection and assigned a noncompensable
evaluation for duodenal ulcer disease.
The Board notes that the RO issued a rating decision in May
1995 increasing the veteran’s evaluation for duodenal ulcer
disease to 20 percent. The Court of Veterans Appeals has
held that where a veteran has filed a notice of disagreement
as to the assignment of a disability evaluation, a subsequent
rating decision awarding a higher rating, but less than the
maximum available benefit, does not abrogate the pending
appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
Therefore, while the veteran appealed the RO’s June 1994
rating decision assigning a noncompensable evaluation for
duodenal ulcer disease, the subsequent partial grant of 20
percent does not terminate the issue on appeal.
The Board also notes that the veteran appears to have
initiated an appeal of the RO’s July 1997 denial of service
connection for severe chest pain, severe joint pains, failing
eyesight, and memory loss secondary to herbicide exposure.
In a VA Form 21-4138 (Statement in Support of Claim) received
in September 1997, and a VA Form 9 (Appeal to Board of
Veterans’ Appeals) received in November 1997, the veteran
indicated that he still felt that his problems were caused by
his exposure to Agent Orange. As no action has been taken in
response to the veteran’s statements, the matter is referred
to the RO for appropriate development.
The Board has rendered a decision on the issues of
entitlement to service connection for hiatal hernia, and
entitlement to service connection for PTSD. The issue of
entitlement to an evaluation in excess of 20 percent for
duodenal ulcer disease is addressed in the REMAND portion of
this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to service
connection for a hiatal hernia and PTSD, as the former
results from his service-connected duodenal ulcer disease and
the latter results from stressors experienced in service.
The veteran’s representative maintains that the claim of
entitlement to service connection for hiatal hernia has not
been considered by the RO on a secondary basis, and that
therefore, a REMAND is in order.
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 evidence supports a grant
of service connection for a hiatal hernia. It also is the
decision of the Board that the preponderance of the evidence
is against the veteran’s claim of entitlement to service
connection for PTSD.
FINDINGS OF FACT
1. There is competent medical evidence linking secondarily
the veteran’s hiatal hernia to his service-connected duodenal
ulcer disease.
2. The veteran indicated on induction into the service that
he had had nervous trouble.
3. The veteran has not been shown to have PTSD.
CONCLUSIONS OF LAW
1. The veteran’s hiatal hernia is proximately due to his
service-connected duodenal ulcer disease. 38 U.S.C.A.
§§ 1110, 5107 (West 1997); 38 C.F.R. §§ 3.303, 3.310(a)
(1997).
2. The veteran’s claim of entitlement to service connection
for PTSD is not well grounded. 38 U.S.C.A. § 5107(a) (West
1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Hiatal Hernia
The veteran contends that he developed a hiatal hernia from
his service-connected duodenal ulcer disease, and that
therefore, service connection for that disorder is warranted
on a secondary basis. Allegedly, since service, his ulcer
medication has caused continuous vomiting, which has put
stress on his esophagus and has resulted in a hernia.
The law provides that a veteran is entitled to service
connection for a disease or injury incurred in or aggravated
by service. 38 U.S.C.A. § 1110 (West 1997); 38 C.F.R. §
3.303 (1997). In addition, service connection may be granted
for a disability that is proximately due to or the result of
a service-connected disability. When service connection is
established for a secondary condition, the secondary
condition is considered part of the original condition. 38
C.F.R. § 3.310(a). In cases involving a question of medical
causation, competent medical evidence is required to link
directly or secondarily the claimed condition to the
veteran’s period of active service. See Lathan v. Brown, 7
Vet.App. 359, 365 (1995); Caluza v. Brown, 7 Vet.App. 498,
506 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).
The preliminary question before the Board, however, is
whether the veteran has submitted a well-grounded claim
within the meaning of 38 U.S.C.A. § 5107(a), and if so,
whether the VA has properly assisted him in the development
of his claim. A “well-grounded” claim is one that is
plausible, capable of substantiation or meritorious on its
own. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Having
viewed the veteran’s contentions and the evidence of record
in the light most favorable to his claim, the Board finds
that the veteran has presented a claim that is not
implausible. The Board also is satisfied that all relevant
facts have been fully developed.
In this case, service medical records are devoid of evidence
that the veteran was treated for a hiatal hernia during
active service. However, they reflect that he complained of
vomiting on four occasions.
Post-service medical evidence dated as early 1978 shows that
the veteran has regularly sought treatment for nausea,
vomiting and epigastric pain since discharge. Those symptoms
have been diagnosed as peptic esophagitis and
gastroenteritis.
By letter dated in October 1984, Jerry L. Yon, M.D.,
indicated that he had seen the veteran for stomach pains,
nausea and vomiting of 17 years duration. A physical
evaluation revealed gastritis. Dr. Yon advised the veteran
to refrain from taking salicylate-containing medication, but
to continue taking Tagamet. He indicated that if the
symptoms did not then abate, an endoscopy would be performed
to check the effect of Tagamet.
During a VA outpatient treatment visit in 1993, the veteran
presented with epigastric complaints and was diagnosed with a
hiatal hernia. A hiatal hernia with regurgitation or
gastroesophageal reflux was confirmed on VA examination in
May 1994. A right inguinal hernia with gastroesophageal
reflux disease was confirmed during VA outpatient treatment
visits in June and August 1995.
By letter dated in August 1994, J. K. Phillips, Jr., M.D.,
indicated that he had been treating the veteran for 18 years
for reported abdominal pain, which had been proven by
gastroscopic findings to be peptic ulcer disease. Dr.
Phillips did not relate the pain to the veteran’s hiatal
hernia.
During a VA Agent Orange examination in August 1995,
gastroesophageal reflux disease and a right inguinal hernia
were diagnosed. In August 1997, the veteran underwent a
right inguinal hernia repair.
By letter dated in April 1998, Craig M. Bash, M.D., wrote
that it was likely that the veteran’s vomiting was secondary
to his service-connected duodenal ulcer disease and a
causative fact in the development of the hiatal hernia. He
explained that it was well known that an increase in
abdominal pressure increases one’s risk for developing
inguinal hernias, and that he believed the risk was equally
applicable to hiatal hernias. He noted that a patient
develops gastroesophageal reflux when the gastroesophageal
junction is comprised with a hiatal hernia because the
valvular mechanism is faulty. Following reflux, the patient
might develop esophagitis, Barrett’s esophagitis, strictures,
or ulcerations, all of which might lead to esophageal
neoplasm. Dr. Bash’s opinion was based on all pertinent
evidence contained in the claims file.
Clearly, the evidence shows that the veteran has been
vomiting regularly since active service. According to Dr.
Bash, that symptom results from the veteran’s duodenal ulcer
disease, which is service connected, and has caused the
veteran’s hiatal hernia. Inasmuch as the record includes
competent medical evidence linking the veteran’s hiatal
hernia secondarily to his service-connected duodenal ulcer
disease, the veteran’s claim for service connection for a
hiatal hernia must be granted under 38 C.F.R. § 3.310(a).
B. PTSD
The veteran asserts that he developed PTSD as a result of
stressors experienced in service. Allegedly, those stressors
include: receiving gunfire from snipers during Operations
Iron Triangle and Cedar Fall in Vietnam; witnessing four
fellow servicemen killed as a result of an accident involving
his unit; burying approximately 985 North Vietnamese soldiers
and using bulldozers to cover their graves with dirt; and
witnessing the deaths of several blacks during riots at Fort
Campbell.
As stated previously, the Board must first determine whether
the veteran’s PTSD claim is well grounded. While his claim
need not be conclusive, it must be accompanied by supporting
evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
In the absence of evidence of a well-grounded claim, there is
no duty to assist the veteran in developing the facts
pertinent to his claim, and the claim must fail. Epps. v.
Gober, 126 F.3d 1464, 1467-1468 (Fed. Cir. 1997).
To establish that a claim for service connection is well
grounded, the veteran must demonstrate the incurrence or
aggravation of a disease or injury in service, the existence
of a current disability, and a nexus between the in-service
injury or disease and the current disability. Id. Medical
evidence is required to prove the existence of a current
disability and to fulfill the nexus requirement. Lay or
medical evidence, as appropriate, may be used to prove
service incurrence. See Caluza, 7 Vet. App. at 506.
Alternatively, a veteran may establish a well-grounded claim
for service connection under the chronicity provision of
38 C.F.R. § 3.303(b), which 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 that that same condition currently exists. Such
evidence must be medical unless the condition at issue is a
type as to which, under case law, lay observation is
considered competent to demonstrate its existence. If the
chronicity provision is not applicable, a claim still may be
well grounded pursuant to the same provision if the evidence
shows that the condition was observed during service or any
applicable presumption period and continuity of
symptomatology was demonstrated thereafter, and includes
competent evidence relating the current condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98
(1997).
On pre-induction examination in January 1966, the veteran
marked that he had had nervous trouble, but the examining
physician noted no psychiatric abnormalities. During active
service, the veteran did not seek treatment for PTSD, or any
other psychiatric problem.
The veteran underwent a VA PTSD examination in July 1995,
after which the examiner diagnosed no psychiatric illness.
The remainder of post-service medical records show that the
veteran sought treatment on numerous occasions for various
conditions unrelated to his mental health.
Clearly, beyond the veteran’s contentions, the record
contains no evidence establishing that the veteran currently
has PTSD. As the veteran is a layman with no medical
training and expertise, his statements, alone, are
insufficient to establish that such a condition exists. See
Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992) (holding
that laypersons are not competent to offer medical opinions).
In the absence of competent medical evidence of PTSD on which
to predicate a grant of service connection, there can be no
valid claim. See Brammer, 3 Vet.App. 223, 225 (1992).
Based on the foregoing, the Board concludes that the veteran
has failed to meet his initial burden of submitting evidence
of a well-grounded claim of entitlement to service connection
for PTSD. Therefore, his claim for that benefit must be
denied.
As the veteran has failed to meet his initial burden of
submitting evidence of a well-grounded claim, the VA is under
no duty to assist him in developing the facts pertinent to
that claim. See Epps, 126 F.3d at 1468. That
notwithstanding, the Board views its discussion as sufficient
to inform the veteran of the elements necessary to well
ground his claim, and an explanation as to why his current
attempt fails. As the Board is not aware of the existence of
additional evidence that might well ground the veteran’s
claim, no duty to notify arises under 38 U.S.C.A. § 5103(a).
See McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir.
1997).
The Board recognizes that the aforementioned issue is being
disposed of in a manner that differs from that employed by
the RO. The RO denied the veteran’s claim on the merits,
while the Board has concluded that it is not well grounded.
The United States Court of Veterans Appeals has held that
when an RO does not specifically address the question of
whether a claim is well grounded, but rather, 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).
Therefore, in this case, the veteran has not been prejudiced
by the manner in which the Board has disposed of the
aforementioned claim.
ORDER
Service connection for a hiatal hernia is granted.
Service connection for PTSD is denied.
REMAND
A review of the record reflects that additional development
by the RO is needed before the Board can proceed further in
adjudicating the veteran’s claims of entitlement to an
evaluation in excess of 20 percent for duodenal ulcer
disease.
As noted previously, when service connection is established
for a secondary condition, the secondary condition is
considered part of the original condition. 38 C.F.R. §
3.310(a). Thus, in light of the Board’s above decision
service connecting a hiatal hernia on a secondary basis to
the veteran’s duodenal ulcer disease, symptomatology of the
veteran’s hiatal hernia is now considered part of his
duodenal ulcer disease.
The medical evidence of record discloses that the veteran has
never undergone a VA examination of his overall digestive
system, to include ulcers and hernias. In fact, his duodenal
ulcer disease has not been evaluated in approximately three
years.
In light of the veteran’s recent hernia repair, which might
have succeeded in alleviating his hernia-related symptoms,
and the absence of a recent evaluation of his duodenal ulcer
disease, the Board believes that an updated medical
examination is necessary to determine the true extent of
impairment caused by the veteran’s newly characterized
duodenal ulcer disease with hiatal hernia.
Clearly, since discharge, the veteran has received treatment
for duodenal ulcer disease and hiatal and inguinal hernias,
and has reported numerous digestive system problems, not all
of which have been related to his duodenal ulcer disease or
hiatal hernia. As the record stands, it is impossible to
determine which of the veteran’s digestive system complaints
are related to his in-service duodenal ulcer disease and
hiatal hernia, and not to alternative conditions. Medical
opinion in that regard is needed.
The Board regrets the delay associated with this REMAND;
however, it is necessary to afford the veteran sufficient
consideration with regard to his appeal. Accordingly, this
case is REMANDED to the RO for the following actions:
1. The veteran should be afforded a VA
examination by an appropriate specialist
for the purpose of ascertaining the
nature and severity his service-connected
duodenal ulcer disease with hiatal
hernia. Prior to the evaluation, the
veteran’s claims file and a copy of this
REMAND should be provided to the examiner
for review. Any and all indicated
evaluations, studies, and tests deemed
necessary should be accomplished.
Following a thorough evaluation, the
examiner should list all digestive system
symptomatology exhibited by the veteran.
He should then distinguish the symptoms
that are related to the veteran’s ulcer
disease and hernia from those that are
related to other non-service connected
conditions. Thereafter, he should offer
an opinion regarding the degree of
functional impairment caused by the
veteran’s service-connected digestive
system disability in terms of the
nomenclature of the rating schedule. The
examiner should provide the complete
rationale on which his opinion is based.
2. Following completion of the above,
the RO should review the VA examination
report for compliance with the previously
stated instruction. If the report is
deficient in any manner, immediate
corrective action should be taken.
3. The RO should then readjudicate the
veteran’s claim based on the additional
evidence. If the benefit sought on
appeal is not granted, the veteran and
his representative should be issued a
Supplemental Statement of the Case, and
afforded an appropriate time period to
respond before the case is returned to
the Board for further review.
The purpose of this REMAND is to further develop the
veteran’s claim, and the Board intimates no opinion,
favorable or unfavorable, as to the claim’s merits. The
veteran is free to submit any additional evidence he wishes
to have considered in connection with his current appeal;
however, no action is required until further notified. The
veteran is hereby notified that a failure to attend any
scheduled examination may result in a denial of his claim.
WARREN W. RICE, JR.
Veterans Law Judge, 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 the issue 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).
