judge_norm: HEATHER J HARTER

condition: respiratory

disposition: granted

condition: diabetes

text:
Citation Nr: 9935000
Decision Date: 12/16/99    Archive Date: 12/23/99

DOCKET NO.  95-22 872	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico

THE ISSUES

1.  Entitlement to service connection for the residuals of
inguinal hernia repair.

2.  Entitlement to service connection for a skin disorder.

3.  Entitlement to service connection for the residuals of
kidney stones.

4.  Entitlement to service connection for diabetes mellitus.

5.  Entitlement to service connection for chronic sinusitis.

6.  Entitlement to service connection for blurred vision with
closed tear ducts.

REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

John J. Crowley, Counsel

INTRODUCTION

The veteran served on active duty from April 1948 to May
1972.

This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO).
One of the matters the Board must address is which issue or
issues are properly before it at this time.  Under the
provisions of 38 U.S.C.A. � 7105(a) (West 1991), an appeal to
the Board must be initiated by a notice of disagreement and
completed by a substantive appeal after a statement of the
case is furnished to the veteran.  In essence, the following
sequence is required:  There must be a decision by the RO,
the veteran must express timely disagreement with the
decision, VA must respond by explaining the basis of the
decision to the veteran, and finally the veteran, after
receiving adequate notice of the basis of the decision, must
complete the process by stating his argument in a timely-
filed substantive appeal.  See 38 C.F.R. �� 20.200, 20.201,
20.202, and 20.203 (1999).

In a statement of the case dated in June 1995, the RO
addressed the issue of entitlement to service connection for
hearing loss.  A timely substantive appeal to this
determination was received in June 1995.  In a June 1998
rating determination, service connection for bilateral
hearing loss was granted.  Under guidance supplied by the
United States Court of Appeals for the Federal Circuit in
Grantham v. Brown, 114 f.3d 1156 (Fed. Cir. 1997), no other
outstanding question of law or fact concerning the provision
of benefits under the law administered by the VA remains
unresolved with regard to this issue.  The grant of service
connection thus constitutes a complete grant of the benefit
sought.  Accordingly, it is not before the Board at this
time.

In August 1998, the veteran raised the issue of entitlement
to increased disability compensation based on
unemployability.  In March 1999, entitlement to individual
unemployability due to service-connected disabilities was
also allowed by the RO.  Nevertheless, the veteran's
representative submitted additional written argument in
October 1999.  In addition, more records were submitted by
the veteran, indicating his continued wish to proceed with
the claims reflected on the title page.  Accordingly, in
light of the United States Court of Veterans Claims (Court)
determination in AB v. Brown, 6 Vet. App. 35 (1993), the
Board must proceed with the adjudication of the claims cited
above.

In several statements, the veteran has indicated that many of
the disabilities cited above were the result of exposure to
Agent Orange during his active service.  Accordingly, the
Board will address the issue of Agent Orange exposure within
the context of the veteran's claims of service connection.

FINDINGS OF FACT

1.  No competent medical professional has associated the
veteran's hernia repair, skin disorder, kidney stones,
chronic sinusitis, or blurred vision with closed tear ducts,
with either the veteran's active service or exposure to
herbicide agents used in Vietnam.

2.  The veteran's claims of entitlement to service connection
for the residuals of an inguinal hernia repair, skin
disorder, kidney stones, chronic sinusitis or blurred vision
with closed tear ducts are not meritorious on their own or
capable of substantiation.

3.  In May 1972, during the veteran's active service, a
diagnosis of mild diabetes was assigned.

4.  In August 1999, a VA health care provider associated the
veteran's current diabetes mellitus with his active service.

CONCLUSIONS OF LAW

1.  The claims of entitlement to service connection for the
residuals of inguinal hernia repair, a skin disorder, the
residuals of kidney stones, chronic sinusitis and blurred
vision with closed tear ducts are not well grounded.
38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1116 (West 1991 &
Supp. 1998); 38 C.F.R. �� 3.307(a), 3.309 (1999); and 64 Fed.
Reg. 211, 59232-59243 (November 2, 1999).

2.  Diabetes mellitus was incurred as a result of the
veteran's active service.  38 U.S.C.A. �� 1110, 5107(b) (West
1991); 38 C.F.R. � 3.102 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The threshold question is whether the veteran has presented
evidence of well-grounded claims.  In this case, service
medical records make no reference to a hernia, skin disorder,
kidney stones, chronic sinusitis, or blurred vision with
closed tear ducts.  In May 1967, the veteran was treated on
an emergency basis for a burning in the left eye.  The
veteran was treated on an outpatient basis.  At that time, no
chronic eye disability was noted.  In a series of service
medical evaluations during the veteran's decades of active
service, no reference is made to the disabilities at issue.

In May 1972, the veteran was treated for dizzy spells.
Headaches were also noted.  At that time, a health care
provider diagnosed the veteran with mild diabetes mellitus.
However, no further reference to this disability is contained
within the veteran's service medical records.

At the veteran's separation evaluation in February 1976, the
veteran specifically denied symptoms of sinusitis, a skin
disease, a kidney stone, or blood in his urine.  In the
detailed service medical evaluation, the veteran denied a
family history of diabetes or the use of contact lenses.  At
that time, the veteran's field of vision was found to be
normal.  It was noted that he utilized glasses for distance
vision.  He specifically noted numerous difficulties not at
issue before the Board at this time.  Significantly, no
reference is made to the disabilities at issue.  The
veteran's skin, sinuses, ocular motility, abdomen, viscera
(including hernia), and eyes were all found to be normal upon
clinical medical examination.  The veteran was discharged
from active service in April 1976.

The veteran filed his initial claim for VA compensation in
April 1976.  At that time, when asked to answer the question
of the nature of the sickness, disease or injury, the veteran
asked the RO to "see attached medical records."  These
included the veteran's service medical records.  He made no
reference to the disabilities at issue. Based on a review of
these records, the RO awarded service connection for a
disability not at issue before the Board at this time.  In
December 1978, the veteran disputed the evaluation of the
disability not before the Board at this time.  He made no
reference to the disabilities currently at issue.

In a series of statements and medical records submitted prior
to October 1993, the veteran made no reference to the
disabilities at issue.  Medical records do indicate treatment
for the disabilities at issue until years after the veteran's
discharge from active service.  In October 1993, the veteran
stated that he desired to open a service connection claim due
to Agent Orange exposure for multiple medical disorders.  The
veteran noted that he served in Vietnam from November 1970 to
November 1971.  The veteran indicated that he experienced
several medical disorders which he has no control of,
specifically, a skin rash on his hands and other parts of his
body, blurred vision in both eyes, closed tear ducts, a loss
of hearing, elevated serum uric acid, kidney stone problems,
sciatica, back problems, degenerative joint disease,
gallbladder problems, liver damage, heart disease, glucose
intolerance, high cholesterol, acute pancreatitis,
hypertensive cardiovascular disease, ventricular beats, and
sinusitis.  At this time, it appears that the veteran
believes that all of these disabilities are the result of his
exposure to Agent Orange during his active service.  The
veteran also noted that he was a "borderline" diabetic
while serving in Vietnam.

The RO and the veteran obtained additional medical records.
These medical records indicate treatment for the disabilities
at issue many years following the veteran's discharge from
active service.  For example, in an April 1985
hospitalization report, the veteran was treated for right
ureteral obstruction secondary to a kidney stone.  At that
time, the veteran noted that he began to have lower abdominal
cramps in April of 1985, years following his active service.
Nothing contained in any of the medical records submitted by
the veteran, with the exception of diabetes mellitus, tends
to indicate an association between the veteran's active
service and the disabilities at issue.

Based on additional statements provided by the veteran, the
claims that the veteran wished the RO to address were
clarified.  In March 1995, the veteran stated that valid
medical evidence existed which proved he had been informed
for the first time of his hernia disorder during the service
retirement physical in the early part of 1976.  At this time,
the veteran did not cite this alleged evidence or indicate
where the evidence could be found.  He indicated that the
rupture occurred in late 1971 through July 1974.  It was
contended that the rupture was caused by the lifting of heavy
furniture during several moves from one building to another
during the phase-out of a base just prior to closure.

Regarding the skin disorder, it was contended that a rash
occurs at various times without warning.  The veteran noted a
severe rash on his left hand, which was never explained, but
which he contended is documented in the medical records.
Regarding his kidney stones, the veteran stated that this
disorder was related to his gallbladder disease and later
resulted in surgery.  He appears to contend that his blurred
vision and closed tear ducts were the result of Agent Orange
exposure.

A statement of the case on the claims cited above was issued
in June 1995.  In the veteran's substantive appeal, he
asserted that during a routine physical checkup a service
medical provider told the veteran not to lift anything heavy
from now on.  The veteran notes that the medic failed to make
a notation of this condition in his medical records at the
time of his retirement physical.  The veteran contended that
when he strained his back it caused a hernia disorder.
Regarding his skin rash, the veteran stated that he has had a
skin rash disorder off and on since 1971.  Abdominal skin
rashes, which were reported, but not diagnosed, were also
noted.  In regard to the kidney stone disorder, the veteran
indicated that following his retirement from military service
he was informed that he might have a kidney stone problem
later in his life.  The veteran conceded that no
documentation to this effect is of record.  The veteran also
noted treatment for his sinus problems during his active
service.  He contended that inadequate medical information
regarding this disorder was the result of inadequate
treatment during service.  The veteran again contended that
his blurred vision and closed tear ducts were the result of
herbicide exposure during the Vietnam War.  He contended that
proper or adequate medical treatment was not always available
during his active service and that accordingly, specific
medical documentation was not always prepared or maintained.

Reports of medical evaluations performed at the request of
the RO reflect some of the disorders at issue.  The medical
evidence obtained by both the veteran and the RO focus
primarily on disabilities not at issue before the Board at
this time.  As noted above, the veteran is currently
receiving a total disability evaluation due to his service-
connected disabilities.

In written argument prepared by the veteran's representative
in October 1999, it appears to be contended that herbicide
exposure caused the development of blurred vision and closed
tear ducts.  At that time, there was no indication that the
veteran believes any of his other disabilities were caused by
herbicide exposure.  That month, the veteran provided
additional medical records to support his claim.  A waiver of
RO consideration was submitted at that time.

Included in these records is a statement from a VA nurse who
indicated her familiarity with the veteran's medical history
and specifically noted her review of medical evidence
pertaining to the veteran's diabetes.  She emphasized records
showing elevated triglyceride levels both during the
veteran's active service and immediately following his
discharge from active service.  She referred to a March 1990
notation of diabetes mellitus.  In light of these medical
records, she concluded that symptoms of diabetes began while
the veteran was on active duty and indicated her support for
the veteran's claim for service connection for diabetes
mellitus.  Significantly, she made no reference to any other
of the disabilities at issue.

The veteran has also submitted a statement from a Bruce A.
Owens, D.O.  In this statement, treatment for disabilities,
including chronic hypertension, obesity, and chronic renal
insufficiency was noted.  It was indicated that the veteran
was hospitalized for hypovolemic shock with bradycardia,
severe hyperkalemia, renal insufficiency, diabetes,
hypoglycemia, a suspicion of sleep apnea, and a history of
hyperlipidemia.  Dr. Owens noted a May 1972 service medical
report that refers to a diagnosis of a "mild case" of
diabetes mellitus.  Dr. Owens stated, in pertinent part, that
the veteran "did indeed have Type II diabetes in May 1972."

Analysis

As noted above, the threshold question is whether the veteran
has presented evidence of well-grounded claims.  The Court
has defined a well-grounded claim as a claim which is
plausible, that is meritorious on its own, or is capable of
substantiation.  If he has not filed such a claim, the appeal
must fail.  38 U.S.C.A. � 5107(a); Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).  The United States Court of
Appeals for the Federal Circuit has affirmed the principle
that if an appellant fails to submit a well-grounded claim,
VA is under no duty to assist in any further development of
the claim.  Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).

In order for a claim to be well grounded, there must be a
current disability that is related to an injury or disease
which was present during service.  Rabideau v. Derwinski,
2 Vet. App. 141, 143 (1992).  Case law provides that although
a claim need not be conclusive to be well grounded it must be
accompanied by evidence.  A claimant must submit some
supporting evidence that justifies a belief by a fair and
impartial individual that the claim is plausible.  Dixon v.
Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski,
2 Vet. App. 609, 611 (1992).  Where the determinative issue
involves a question of medical diagnosis or medical
causation, competent medical evidence is required to
establish a well-grounded claim.  Grottveit v. Brown,
5 Vet. App. 91, 93 (1993).  Where the determinative issue is
a question of medical diagnosis or medical causation, lay
assertions cannot constitute evidence to render a claim well
grounded under 38 U.S.C.A. � 5107(a).  If no cognizable
evidence is submitted to support the claim, the claim cannot
be well grounded.

The Court has held that, in general, a claim for service
connection is well grounded when three elements are
satisfied.  First, there must be competent evidence of a
current disability (a medical diagnosis).  Second, there must
be evidence of an occurrence or aggravation of a disease or
injury incurred in service (lay or medical evidence).  Third,
there must be a nexus between the in-service injury or
disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498 (1995).  The Court has
further held that the second and third elements of a well-
grounded claim for service connection can also be satisfied
under 38 C.F.R. � 3.303(b) (1999) by (a) evidence that a
disorder was "noted" during service or an applicable
presumption period; (b) evidence showing post-service
continuity of symptomatology; and (c) medical or, in certain
circumstances, lay evidence of a nexus between the present
disability and post-service symptomatology.  See 38 C.F.R.
� 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).
Alternatively, service connection may be established under
38 C.F.R. � 3.303(b) by evidence of (i) the existence of a
chronic disease in service or during an applicable
presumption period and (ii) present manifestations of the
same chronic disease.  Ibid.

With respect to the first prong of the Caluza analysis, a
review of the medical records indicates that the veteran
appears to suffer from the disabilities at issue.  Outpatient
treatment records appear to note treatment on a sporadic
basis for many of the veteran's disabilities.  With respect
to the second prong of the Caluza  analysis, a review of the
medical evidence of record does not indicate treatment for a
hernia, kidney stones, chronic sinusitis or blurred vision
with closed tear ducts.  While treatment for a skin rash
during service appears to be indicated, no chronic skin
disorder is found.  Significantly, in numerous service
medical evaluations, the veteran denied having a skin
disease.

The veteran has contended that the service medical records
were inadequate due to inadequate medical care.  However, the
Board must note that the veteran himself failed to note the
disabilities at issue during his active service.  For
example, in February 1976, the veteran specifically denied
having a kidney stone, sinusitis, hay fever, gallbladder
trouble or gallstones, or a hernia.  In this regard, it is
not simply the service medical provider that failed to make
note of the disorders at issue, but the veteran himself.
During the February 1976 service medical evaluation, the
veteran noted numerous difficulties which are specifically
cited by the evaluator.  Significantly, he made no reference
to the disabilities at issue.

With regard to the claim of service connection for diabetes
mellitus, there is evidence that the veteran was assigned a
diagnosis of mild diabetes in May 1972.  Accordingly, the
second prong of the Caluza analysis is met regarding the
veteran's claim of entitlement to service connection for
diabetes mellitus.  Regarding all other claims at issue
before the Board at this time, the second prong of the Caluza
analysis has not been met.

The veteran has provided some evidentiary assertions
concerning the numerous symptoms he relates to his active
service.  However, while the veteran is competent to describe
events or symptomatic manifestations of a disorder that are
perceivable to a lay party, the Court has made clear that a
lay party is not competent to provide probative evidence as
to matters requiring expertise derived from the specialized
medical knowledge, skill, expertise, training or education.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1994).

With respect to the third prong of the Caluza analysis, nexus
evidence, there is no competent medical evidence of record to
associate the veteran's hernia, skin disorder, kidney stones,
chronic sinusitis or blurred vision with closed tear ducts
with his active service.  If the service medical records do
not show the claimed disability and there is no medical
evidence to link a current disability with events in service
or with a service-connected disability, the claim is not well
grounded.  The veteran has provided numerous medical records
in support of his claim.  However, none of these records
support an association between the disabilities at issue and
the veteran's active service with the exception of the claim
of service connection for diabetes mellitus.  The medical
evidence of record, rather than supporting the veteran's
claims, support the conclusion that these disabilities
emerged many years subsequent to his discharge from active
service.

With respect to the application of 38 C.F.R. � 3.303(b)
(1999) for the purposes of well grounding his claims, the
Board does not find that the veteran is competent to link any
manifestations observable to a lay party to any underlying
disability for which service connection is at issue.  Thus,
his assertions cannot serve to render his claims well-
grounded on the basis of continuity of symptomatology or
chronicity.  Savage, supra.

While the veteran has been treated for the disabilities at
issue since his discharge from active service, the evidence
submitted by the veteran in support of his claims regarding
an association between the disabilities at issue and his
active service consists nearly entirely of his own
statements.  However, the record does not reveal that the
veteran or his representative possess any medical expertise
and they have not claimed such expertise.  Thus, the
veteran's lay medical assertions, as well as those of his
representative, to the effect that these disorders were
caused by his active service have no probative value.  See
Allen v. Brown, 7 Vet. App. 439 (1995).  On the issue of
medical causation, the Court has been clear that "[l]ay
hypothesizing, particularly in the absence of any supporting
medical authority, serves no constructive purpose . . ."
Hyder v. Derwinski, 1 Vet. App. 221, 225 (1991).

With regard to the veteran's claim of entitlement to service
connection for diabetes mellitus, the veteran has provided a
competent medical opinion which associates the veteran's
currently diagnosed diabetes with his active service.
Accordingly, the veteran has met all three prongs of the
Caluza analysis.  Consequently, this claim is well grounded
under VA law.  With regard to the veteran's other claims, in
Chelte v. Brown, 10 Vet. App. 268, 271 (1997), the Court held
that in the absence of competent medical evidence of a
current disability and a causal link to service or evidence
of chronicity or continuity of symptomatology, a claim is not
well grounded.  In this case, there is no evidence to
associate a hernia disorder, a skin disorder, kidney stones,
chronic sinusitis, or blurred vision with closed tear ducts
to the veteran's active service.  In this regard, it is
important to note that even if the veteran had been treated
on a sporadic basis for the disorders at issue during his
many years of active service, there is absolutely no evidence
to support the conclusion that the veteran developed a
chronic skin disorder or sinusitis during his active service.
Furthermore, there is no evidence tending to show the
presence of any other relationship to his active service.
Accordingly, the Board must find that the claims are not well
grounded as a matter of law.

The veteran's representative has contended that the veteran's
blurred vision and closed tear ducts are the result of
exposure to Agent Orange.  In earlier statements, the veteran
appears to contend that all of the disabilities at issue are,
in some way, the result of Agent Orange exposure.  If a
veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 C.F.R.
� 3.307(a)(6) are met even though there is no record of such
disease during service, provided further that the rebuttable
presumption provisions of 38 C.F.R. � 3.307(d) are also
satisfied:  Chloracne or other acneform disease consistent
with chloracne; Hodgkin's disease; multiple myeloma; Non-
Hodgkin's lymphoma; porphyria cutanea tarda; respiratory
cancers (cancer of the lung, bronchus, larynx or trachea);
and soft-tissue sarcoma (other than osteosarcoma,
chondrosarcoma,  Kaposi's sarcoma, or mesothelioma).
38 C.F.R. � 3.309(e) (1999).

The term "soft-tissue sarcoma" includes the following:
adult fibrosarcoma; dermatofibrosarcoma protuberans;
malignant fibrous histiocytoma; liposarcoma; leiomyosarcoma;
epithelioid leiomyosarcoma (malignant leiomyoblastoma);
rhabdomyosarcoma; ectomesenchymoma; angiosarcoma
(hemangiosarcoma and lymphangiosarcoma); proliferating
(systemic) angioendotheliomatosis; malignant glomus tumor;
malignant hemangiopericytoma; synovial sarcoma (malignant
synovioma); malignant giant cell tumor of tendon sheath;
malignant schwannoma, including malignant schwannoma with
rhabdomyoblastic differentiation (malignant Triton tumor);
glandular and epithelioid malignant schwannomas; malignant
mesenchymoma; malignant granular cell tumor; alveolar soft
part sarcoma; epithelioid sarcoma; clear cell sarcoma of
tendons and aponeuroses; extraskeletal Ewing's sarcoma;
congenital and infantile fibrosarcoma; and malignant
ganglioneuroma.  38 C.F.R. � 3.309(e).

The VA has recently determined that a presumption of service
connection based on exposure to herbicides used in the
Republic of Vietnam during the Vietnam War is not warranted
for the following disabilities: (1) hepatobiliary cancers;
(2) nasal/ nasopharyngeal cancer; (3) bone cancer; (4) breast
cancer; (5) female reproductive cancers; (6) urinary bladder
cancer; (7) renal cancer; (8) testicular cancer; (9)
leukemia; (10) abnormal sperm parameters and infertility;
(11) motor/coordination dysfunction; (12) chronic peripheral
nervous system disorders; (13) metabolic and digestive
disorders (other than diabetes mellitus); (14) immune system
disorders; (15) circulatory disorders; (16) respiratory
disorders (other than certain respiratory cancers); (17) skin
cancer; (18) cognitive and neuropsychiatric effects; (19)
gastrointestinal tumors; (20) brain tumors; and  (21) any
other disorder for which the Secretary has not specifically
determined a presumption of service connection is warranted.
64 Fed. Reg. 211, 59232-59243 (November 2, 1999).

The statutory and regulatory provisions pertaining to Agent
Orange exposure include 38 U.S.C.A. � 1116 (West 1991 & Supp.
1998); 38 C.F.R. � 3.307 (1999).  They provide for
presumption of exposure to all herbicide agents for veterans
who served on active duty in Vietnam during the Vietnam War
and who have a disease listed at � 3.309(e).  (Emphasis
added.)  The residuals of a hernia repair, a skin rash, the
residuals of kidney stones, chronic sinusitis, and blurred
vision with closed tear ducts are not listed within 38 C.F.R.
� 3.309(e).  The Court has pointed out that the use of the
word "and" in both the statutory and regulatory provisions
mandates that the presumption of exposure only applies to
those who both (1) served in Vietnam and (2) developed a
specified disease.  McCartt v. West, 12 Vet. App. 164 (1999).

The United States Court of Appeals for the Federal Circuit
determined that � 5 of the Veteran's Dioxin and Radiation
Exposure Compensation Standards Act of 1984, Pub. L. No. 98-
542, 98 Sta. 2725, 2727-29, did not preclude, or authorize VA
to preclude, an appellant from proving that he or she had a
disability as a result of exposure to ionizing radiation
under the provisions of 38 U.S.C.A. � 1110 and 38 C.F.R.
� 3.303(d), despite the fact that the claimed disability is
not a potentially "radiogenic disease" under 38 C.F.R.
� 3.311b (now � 3.311(1998)).  Combee v. Brown, 34 F.3d 1039
(Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet.
App. 78 (1993).  In such cases, an appellant must be given an
opportunity to prove that the exposure to ionizing radiation
during service actually caused the claimed disability and
that service connection is therefore warranted under 38
U.S.C.A. �� 1110, 1131 and 38 C.F.R. � 3.303(d).

In light of Combee and the veteran's reference to these
disabilities occurring during his active service, the Board
has not only considered whether the veteran has a disability
listed in 38 C.F.R. � 3.309(e), but has also considered
whether any of the disabilities at issue are the result of
his active service under 38 U.S.C.A. �� 1110, 1131 and
38 C.F.R. � 3.303(d).  The fact that the veteran does not
meet the requirements of 38 C.F.R. � 3.309(e) does not
preclude him from establishing service connection with proof
of actual direct causation.  However, as noted above, there
is no competent medical evidence which indicates that the
claims at issue, with the exception of the claim of service
connection for diabetes mellitus, is plausible.  Accordingly,
the claims are not well grounded.  See Grottveit v. Brown,
5 Vet. App. 91, 93 (1993).

In Robinette v. Brown, 8 Vet. App. 69, 77 (1995), the Court
stated that if a claim alleges the existence of medical
evidence that, if true, would have made the claim plausible,
the VA would be under a duty under 38 U.S.C.A. � 5107(a), to
advise him to submit such evidence to complete their
application for benefits.  The Court also held, however, that
the obligation exists only in limited circumstances where the
veteran has referenced other known and existing evidence.
See Epps v. Brown, 9 Vet. App. 341, 344 (1996).  In this
case, the veteran appears to indicate that medical providers
told him during his active service that he had a hernia
disorder.  However, the veteran has also indicated that the
evaluator or evaluators made no notation of this reference at
that time.  Consequently, neither the Board nor the RO is on
notice of the existence of any obtainable documentary
evidence, that, if true, would make the veteran's claim for
service connection for these disabilities (with the exception
of the claim of service connection for diabetes mellitus)
plausible.  In this regard, it is important to note that the
veteran himself denied having a hernia disorder or skin
disorder during his active service.  Accordingly, the claims
are denied.

With regard to the veteran's claim of service connection for
diabetes mellitus, as noted above, this claim is well
grounded under the three-prong test enunciated by the Court
in Caluza.  As noted above, competent medical care providers
have associated the veteran's diagnosed mild diabetes
mellitus in service with his current diabetes.  While there
is no record of any treatment for diabetes for many years
following the veteran's discharge from active service, the
Board must find the medical opinions recently supplied by the
veteran to be compelling.  In resolving the ultimate issue,
the Board is mindful of the doctrine of reasonable doubt.  As
the Court has written:

	A unique standard of proof applies in
decisions on claims for veterans'
benefits.  Unlike other claimants and
litigants, pursuant to 38 U.S.C. � 3007(b)
[now 38 U.S.C.A. � 5107(b)], a veteran is
entitled to the "benefit of the doubt"
when there is a proximate balance of
positive and negative evidence.

Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Based on the evidence cited above, the Board finds that the
medical evidence supporting the veteran's claim of
entitlement to service connection for diabetes mellitus is in
equipoise with the evidence that does not support this claim.
Accordingly, the veteran must be provided the benefit of the
doubt.  As a result, entitlement to service connection for
diabetes mellitus is found.  With regard to the veteran's
other claims, as noted above, the veteran has supplied no
medical evidence which would support the conclusion that
these disabilities are related to his active service.  While
the veteran was treated for some of these disorders during
his active service, there is no evidence to associate the
veteran's current disabilities with his active service.
Accordingly, the claims must be denied.

ORDER

Entitlement to service connection for the residuals of an
inguinal hernia repair, a skin disorder, the residuals of
kidney stones, chronic sinusitis, and blurred vision with
closed tear ducts are denied.

Entitlement to service connection for diabetes mellitus is
granted.

	Heather J. Harter
	Acting Member, Board of Veterans' Appeals

	(CONTINUED ON NEXT PAGE)


series: legacy

judge_norm: NANCY I PHILLIPS

judge_role: Member, Board of Veterans' Appeals

disposition: denied

condition: thyroid

disposition: remanded

text:
Citation Nr: 0001000
Decision Date: 01/12/00    Archive Date: 01/27/00

DOCKET NO.  94-07 267	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUES

1.  Entitlement to service connection for
atherosclerotic/atherosclerotic heart disease due to lithium
therapy prescribed for a service-connected bipolar affective
disorder

2.  Entitlement to an increased disability evaluation for
hypothyroidism, currently evaluated as 10 percent disabling,
on appeal from the initial grant of service connection.

3.  Entitlement to a total disability rating based on
Individual Unemployability due to service-connected
disability (TDIU).

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Bernie Gallagher, Counsel

INTRODUCTION

The appellant had active service from November 1975 to
September 1976

This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama.  A rating decision in April 1993 granted service
connection for hypothyroidism, evaluated as 10 percent
disabling from August 1992.  This case was remanded by the
Board in August 1996 and July 1998 for further development.
In July 1998, the Board granted the veteran a 30 percent
rating for service-connected bipolar disorder.

FINDING OF FACT

The veteran has been euthyroid since August 12, 1992, the
date initial grant of service connection.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent
for service-connected hypothyroidism have not been met at any
time since August 12, 1992.  38 U.S.C.A. � 1155 (West 1991);
38 C.F.R. � 4.7, 4.119, Diagnostic Codes 7900, 7903 (1996-
1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background.

In April 1990, the veteran was seen in the VA endocrinology
clinic for an evaluation of his thyroid functioning.  It was
determined that his current dose of medication was suboptimal
and it was reported that he was euthyroid by history and
physical examination.  At discharge from a period of
hospitalization in July 1992, hypothyroidism was diagnosed by
history alone.

On August 12, 1992, the veteran filed his initial claim for
service-connection for hypothyroidism.

On a VA examination in March 1993, the veteran reported that
he was unable to do any gainful employment because of
restriction from chest pain as a result of a myocardial
infarction.  A serum test disclosed that the veteran's T-4,
T-3 RU, and FTI were normal.  On physical examination, he had
a normal thyroid on palpation.  Hypothyroidism, under
treatment, was noted.

The rating action in April 1993 granted service-connection
for hypothyroidism, evaluated as 10 percent disabling from
August 12, 1992, the date of the original claim.

The veteran received a VA examination in September 1996.  A
physical examination showed that the thyroid was palpable
within normal limits.  The pertinent diagnosis was
hypothyroidism most likely induced by Lithium and currently
on thyroid replacement.

In October 1998, the veteran received a thyroid and
parathyroid examination.  The examiner thoroughly reviewed
the veteran's medical records, consulted the appropriate
medical literature, and discussed the case with knowledgeable
colleagues.  He stated that in 1985, the veteran was
diagnosed with thyroid supplementation which had been
successful in returning him to a euthyroid state.

II.  Legal Analysis.

The first responsibility of a claimant is to present a well-
grounded claim.  38 U.S.C.A. � 5107(a) (West 1991).  A claim
for an increased disability rating is well grounded if the
claimant alleges that a service-connected condition has
worsened.  Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992).  In this case, the veteran has complained of
increased psychiatric problems, and therefore, he has
satisfied the initial burden of presenting a well-grounded
claim.

VA has a duty to assist the veteran in the development of
facts pertinent to his claim.  38 U.S.C.A. � 5107(a) (West
1991); 38 C.F.R. � 3.103 (1998).  The duty to assist
includes, when appropriate, the duty to conduct a thorough
and contemporaneous examination of the veteran.  Green v.
Derwinski, 1 Vet. App. 121 (1991).

In this case, the RO provided the veteran VA examinations.
There is no indication of additional medical records that the
RO failed to obtain.  Therefore, VA has satisfied its duty to
assist the veteran mandated by 38 U.S.C.A. � 5107(a).

In considering the severity of a disability it is essential
to trace the medical history of the veteran.  38 C.F.R.
�� 4.1, 4.2 (1998).  Consideration of the whole recorded
history is necessary so that a rating may accurately reflect
the elements of disability present.  38 C.F.R. � 4.2 (1998);
Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the
regulations require review of the recorded history of a
disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings.  Where an
increase in the disability rating is at issue, the present
level of the veteran's disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

After the veteran disagreed with the original disability
rating assigned for his service-connected hypothyroidism, the
RO issued a Statement of the Case (SOC) in December 1993 that
addressed the issue as entitlement to an increased evaluation
for the service-connected hypothyroidism.  The Court recently
held that there is a distinction between a claim based on
disagreement with the original rating awarded and a claim for
an increased rating.  Fenderson v. West, 12 Vet. App. 119
(1999).  The distinction may be important in determining the
evidence that can be used to decide whether the original
rating on appeal was erroneous and in determining whether the
veteran has been provided an appropriate SOC.  Fenderson, 12
Vet. App. at 126.  With an initial rating, the RO can assign
separate disability ratings for separate periods of time
based on the facts found.  Id.  With an increased rating
claim, "the present level of disability is of primary
importance."  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
This distinction between disagreement with the original
rating awarded and a claim for an increased rating is
important in terms of VA adjudicative actions.  See
Fenderson.

The Board is of the opinion that the SOC which listed the
issue as entitlement to an increased evaluation for
hypothyroidism and the supplemental statements of the case
(SSOCS) furnished in September 1995, December 1997, and May
1999, which listed the issue as an evaluation of
hypothyroidism currently evaluated as 10 percent disabling,
met the requirements of Fenderson.  In addition, the RO's SOC
and its SSOCS provided the veteran with the appropriate
applicable law and regulations and an adequate discussion of
the basis for the RO's assignment of an initial disability
evaluation of the 10 percent rating for the service-connected
disability.  The SOC indicated that all the evidence of
record at the time of the rating decision was considered in
assigning the original disability ratings for the veteran's
service-connected hypothyroidism.  The RO did not limit its
consideration to only the recent medical evidence of record
and did not therefore violate the principle of Fenderson.

The veteran has been provided appropriate notice of the
pertinent laws and regulations and has had his claim of
disagreement with the original rating properly considered`
based on all the evidence of record.   In the particular
circumstances of this case, the Board sees no prejudice to
the veteran in recharacterizing the issue on appeal to
properly reflect his disagreement with the initial disability
evaluations assigned to his service-connected disabilities.

In Fenderson, the Court held that "staged" ratings could be
assigned for separate periods of time based on facts found.
Nevertheless, where the veteran files a claim for service
connection for a disability incurred in service, the degree
of disability that is contemporaneous with the claim shall be
considered in assigning the initial disability rating and not
the degree of disability manifested in service many years
earlier.  Moreover, unlike awards for increased disability
ratings, there is no mechanism for awarding an initial
disability rating earlier than the effective date of the
award for service connection for that disability.  Cf. 38
C.F.R. �� 3.157; 3.400(o)(2) (1998).  In this case, the RO
originally assigned a 10 percent rating as of date of the
receipt of claim for service connection for the
hypothyroidism, i.e., and the Board will consider the
evidence of record since that time in evaluating the
veteran's claim.

The veteran's service-connected hypothyroidism is rated under
the criteria for evaluating the endocrine system. 38 C.F.R. �
4.119, Diagnostic Codes 7900, 7903.  These criteria were
revised effective June 6, 1996, since the RO original rated
the veteran's hypothyroidism in 1993. In the May 1999 SSOC,
the RO evaluated the veteran's disability under the new
criteria.  The veteran was given an opportunity to respond.
Accordingly, the veteran will not be prejudiced by the
Board's review of his claim on appeal because due process
requirements have been met.  VAOPGCPREC 11-97 at 3-4; Bernard
v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991).

Where regulations change during the course of an appeal, the
Board must determine, if possible, which set of regulations,
the old or the new, is more favorable to the claimant and
apply the one more favorable to the case. VAOPGCPREC 11-97 at
1; Karnas, 1 Vet. App. at 312-13.  This determination depends
on the facts of the particular case and therefore is made on
a case-by-case basis.  VAOPGCPREC 11-97 at 2.

Therefore, the Board must evaluate the veteran's claim under
both the pre-June 6, 1996, criteria under VA's Schedule for
Rating Disabilities and the current regulations in order to
ascertain which version is most favorable to the veteran, if
indeed either one is more favorable than the other.

Under the criteria for rating hypothyroidism prior to the
revisions made to this criteria in June 1996, moderate
hypothyroidism with fatigability, or the need of continuous
medication, warranted a 10 percent disability evaluation.  A
30 percent disability evaluation requires moderately severe
hypothyroidism with sluggish mentality and other indications
of myxedema, decreased levels of circulating thyroid hormones
(T4 and/or T3 by specific assays).  A 60 percent disability
evaluation requires severe hypothyroidism, with symptoms
under "pronounced" somewhat less marked, and decreased levels
of circulating thyroid hormones (T4 and/or T3, by specific
assays).  Pronounced hypothyroidism with a long history and
slow pulse, decreased levels of circulating thyroid hormones
(T4 and/or T3, by specific assays), sluggish mentality,
sleepiness, and slow return of reflexes warrants a 100
percent disability evaluation.  38 C.F.R. � 4.119, Diagnostic
Code 7903 (1996).

The revised criteria provides that when there is fatigability
or when continuous medication is required for control of
hypothyroidism, a minimum rating of 10 percent is assigned.
A 30 percent disability rating is assigned when there is
fatigability, constipation, and mental sluggishness.  The
next higher, or 60 percent disability rating, requires
muscular weakness, mental disturbance, and weight gain.  The
highest, or 100 percent disability rating contemplates cold
intolerance, muscular weakness, cardiovascular involvement,
mental disturbance (dementia, slowing of thought,
depression), bradycardia (less than 60 beats per minute) and
sleepiness. 38 C.F.R. � 4.119, Diagnostic Code 7903 (1999).

In this case, a review of the medical evidence establishes
that the veteran has been euthyroid, that is, has had a
normally functioning thyroid as a result of his medication
since the effective date of the award of service connection.
All pertinent laboratory findings have been negative and
there is no clinical evidence the hypothyroidism has resulted
in any disability.  Accordingly, the Board finds that the
veteran is not entitled to an evaluation in excess of 10
percent at any time since August 12, 1992.

ORDER

Entitlement to a rating in excess of 10 percent for
hypothyroidism on appeal since the original grant of service
connection is denied.

REMAND

As a result of the Board's remand decision in July 1998, the
veteran received a VA examination by a Dr. Wahl in October
1998.  The examiner addressed the questions posed by the
Board in the remand, but then added that the question of
severe stress in a person's life is a possibility, as
evidenced by the postmortem examinations of young soldiers
who died in combat.  A review of the veteran's record
indicted that he had been under severe stress relative to his
health problems and subsequent family problems.  The examiner
stated that it was difficult to be certain about the effects
of stress but in the absence of other factors, it was a
strong possibility.

The Board requires clarification from Dr. Wahl, if he or she
is still available, or from another physician, on the
question of the relationship between the appellant's service
connected psychiatric disability and his heart disease.

Accordingly, this case must be REMANDED for the following
development:

1.  The RO should arrange for the
appellant's claims file to be reviewed
again by Dr. Wahl, or by a another
physician (a cardiologist) if Dr. Wahl is
not available.  The physician should
express opinion as to whether it is as
least likely as not that the appellant's
service-connected manic depressive disease
caused the underlying heart disease or
aggravated the underlying heart disease by
causing a myocardial infarction.  The
rationale for the opinion should be set
forth.  If the physician feels that an
examination is necessary in order to
answer the question, this should be
accomplished.

2  The RO should ensure that the foregoing
development has been conducted and
completed in full.  If any development is
incomplete, appropriate corrective action
is to be implemented.  Specific attention
is directed to the examination report.  If
the requested examination does not include
adequate responses to the specific
opinions requested, the report must be
returned for corrective action.  38 C.F.R.
� 4.2 (1999);  see also Stegall v. West,
11 Vet. App. 268 (1998).

3. The RO should then readjudicate the
veteran's claim for service connection for
heart disease, with consideration of any
additional information obtained as a
result of this remand, and also
readjudicate the TDIU claim.

4.  If the decision with respect to any
claim remains adverse to the appellant,
he and his representative should be
furnished a supplemental statement of the
case and afforded a reasonable period of
time within which to respond thereto.

The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office.  Kutscherousky v. West, 12 Vet. App. 369
(1999).

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 1999) (Historical and
Statutory Notes).  In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.

	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals


judge_norm: GARY L GICK

benefit: overpayment

text:
Citation Nr: 0002000
Decision Date: 01/27/00    Archive Date: 02/02/00

DOCKET NO.  96-37 011A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado

THE ISSUE

Waiver of recovery of loan guaranty indebtedness of
$13,645.15 plus interest.

ATTORNEY FOR THE BOARD

J. Johnston, Counsel

INTRODUCTION

The veteran retired in April 1978 after more than 21 years of
active military service.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1995 waiver decision of the
Denver, Colorado, Department of Veterans Affairs (VA)
Regional Office Committee on Waivers and Compromises (RO).
This case was previously remanded by the Board in November
1998 for additional evidentiary development.  The veteran
submitted additional financial information but the RO held
that this additional information provided no basis for
allowance.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been requested or
obtained.

2.  There was a default on the veteran's VA guaranteed loan
necessitating a foreclosure sale of the subject property
resulting in a loan guaranty indebtedness initially assessed
at $13,645.15 plus interest.

3.  The veteran was at fault in the creation of the loan
guaranty indebtedness.

4.  VA was not at fault in the creation of the indebtedness.

5.  While the veteran and his co-obligor spouse are shown to
owe a considerable amount of consumer credit debt, there is
no showing that this debt is in any way significantly related
to the costs of the basic necessities of life and, with the
exercise of reasonably prudent financial responsibility, the
veteran should be able to repay the loan guaranty
indebtedness at issue without compromising his ability to
provide himself and his family with the basic necessities of
life, and repayment would not be inequitable or violate the
principles of equity and good conscience.

CONCLUSIONS OF LAW

1.  There was a loss after default of the property which
constituted security for the loan.  38 U.S.C.A. � 5302 (West
1991); 38 C.F.R. � 1.964(a) (1999).

2.  Recovery of $13,645.15 of loan guaranty indebtedness,
plus interest, would not violate the principles of equity and
good conscience.  38 U.S.C.A. � 5302 (West 1991); 38 C.F.R.
� 1.965(a) (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran's claim is well grounded within the meaning of
38 U.S.C.A. � 5107(a), in that it is plausible.  The Board
remanded this appeal in an attempt to fully develop the claim
of financial hardship.  All facts have been developed as far
as practicable and no further assistance is necessary to
comply with the duty to assist.

Facts:  As previously noted in the November 1998 remand, the
evidence on file shows that a qualifying veteran (not the
appellant herein) and his spouse purchased the subject home
on [redacted] in [redacted], Wyoming, in May 1992 for
$51,000.  This loan, provided to these purchasers with VA
loan guaranty, was for 30 years at 15.5 percent interest with
an initial monthly payment for principal and interest of
$666.  The first payment was due in July 1982.  All payments
were apparently made by these initial purchasers in a timely
manner.  In June 1984, the initial purchasers transferred the
subject home to five individuals who assumed the existing
mortgage and note.  The first transferees also apparently
made all payments in a timely manner until such time that the
home was subsequently transferred to the veteran herein and
his spouse and another single male individual (with the
veteran's same last name) in May 1986.  At that time, the
veteran, his co-obligor spouse, and the other co-obligor
agreed to assume all continuing obligations of the initial
purchasers of the subject home.  The warranty deed stated
that all buyers assumed and agreed to pay the mortgage
initially executed in May 1982 and also assumed all
underlying obligations therein, including an agreement to
indemnify VA to the extent of any claim for payment arising
from the guaranty of the indebtedness.  The loan assumption
agreement, signed by the veteran and the two additional
obligors, clearly stated that the buyers would occupy the
subject property on May 20, 1996.

However, having fully completed the assumption agreement on
the subject home in May 1986, the veteran and his co-obligors
failed to actually occupy the property as promised and failed
to make the first or any subsequent payments due on the
subject home as promised.  No payments having ever been made,
the home was foreclosed upon and sold pursuant to such
foreclosure.  After applying all costs and proceeds of sale,
the lender filed a valid claim under loan guaranty against VA
which VA was required to pay, and VA thereafter established
the loan guaranty indebtedness at issue in this case against
the veteran of $13,645.15.

The veteran was later notified of this indebtedness and he
responded with a request for waiver.  The RO issued a waiver
decision in February 1996 which found that the veteran and
his co-obligors were at fault in the creation of the debt in
that, having assumed the mortgage and note on the subject
home, no mortgage payment was ever actually made, and because
there was no apparent effort made by the veteran to sell,
rent, or offer a deed in lieu of foreclosure, or to otherwise
attempt to avoid foreclosure action.  This waiver decision
also accurately noted that the subject home was apparently
purchased as an income property rather than as a primary
residence and that the veteran was a Realtor at the time of
purchase who certainly knew or should have known of his
financial obligations.  The veteran disagreed with this
decision and initiated the instant appeal.  Despite being
provided the opportunity to do so on several occasions, the
veteran has never offered any explanation as to why he and
his co-obligors assumed the mortgage and note on the subject
home and subsequently failed to make any subsequent payments.

In conjunction with his requests for waiver, the veteran has
essentially argued that he is unable to afford repayment of
the indebtedness at issue.  The RO has provided the veteran
with several opportunities to provide evidence of his
financial situation and the veteran has submitted certain
financial information including financial status reports and
tax returns.  As noted in the Board's previous November 1998
remand action, this evidence was incomplete and insufficient
upon which to base a fair determination of financial hardship
and the sole purpose of that remand was to provide the
veteran with an opportunity to submit detailed financial
information.

On remand, the veteran submitted an up-to-date financial
status report (apparently dated in January 1999, although the
RO felt that it was dated from January 1998).  This statement
indicated that the veteran and his co-obligor spouse had
annual net income of approximately $46,000.  The veteran had
income from employment and from military pension and his
spouse had income from Social Security retirement.  That
statement reported a combined monthly net income of $3,836
with total expenses of $4,400; reported expenses exceeding
income by over $550 per month.  That statement noted expenses
for an automobile and insurance of over $2,500 per year and
also an automobile lease agreement requiring payments of
almost $6,000 per year.  That report listed in Section III a
rent or mortgage payment of $1,150 per month and then also
listed under Section IV monthly mortgage payments for a first
mortgage of $581 per month and for a second mortgage of $232
per month.  It was indicated that real estate owned was worth
$77,000.

Also listed in this report was a substantial amount of
consumer credit debt to retail stores (credit cards) and the
purpose of these debts (excluding furniture) was listed as
miscellaneous despite the fact that the Board, in the
November 1998 remand, clearly requested that the purpose of
each debt be specifically identified and this was clearly
communicated in both the remand action and the RO's
subsequent December 1998 development letter to the veteran.
Also submitted were tax returns which reveal that the veteran
and his co-obligor spouse not only maintained a personally
owned single family dwelling but also owned a second single
family dwelling which is maintained as a rental property.
These tax returns reveal that this rental property provides
tax benefits and write-off of depreciation and expenses while
equity in the home increases as it is paid down.

In June 1999, the veteran submitted additional evidence
including a more recent 1998 tax return which revealed that
the veteran and his co-obligor spouse had sold their
principal residence and purchased another principal residence
in their same hometown in Colorado.  While adjusted gross
income for 1998 was listed at $31,000, the veteran's co-
obligor spouse also had receipt of additional, apparently
nontaxable, Social Security benefits in excess of $5,000.
This tax return also indicated annual gross rental income on
the rental home of $8,250, reflecting a monthly rental income
in the neighborhood of $685.  There were also certain
expenses listed in conjunction with ownership of this rental
property.

Also submitted were monthly statements reflecting and
documenting the significant amount of consumer credit debt
previously noted in the veteran's January 1999 financial
status report.  These statements also failed to indicate the
actual items purchased in conjunction with these debts, other
than furniture.  Among this itemized information was a record
documenting the lease of a 1998 Eddie Bauer Ford Expedition
4x4 with a monthly rental expense of $489.

Also submitted was an April 1999 statement from a credit
union reflecting the status of the mortgage on the veteran's
rental property.  While the monthly payment for principal and
interest is documented as $232, there was a serious amount of
delinquent payments on this home including late charges,
despite the fact that the 1998 tax return indicated regular
receipt of substantial rental proceeds on this home.  It was
also noteworthy that the veteran's co-obligor spouse had two
separate Sears credit cards with substantial balances and
that the two March 1999 statements showed that she had
charged exactly $235 per month on each card and that $200
payments made by check on each credit card account had both
been returned for nonsufficient funds.

Law and Regulation:  A waiver of loan guaranty indebtedness
may be authorized for an appellant were both of the following
factors are found to exist:  (1) After default, there was a
loss of the property which constituted security for the loan,
and (2) collection of the indebtedness would be against
equity and good conscience.  38 U.S.C.A. � 5303(b); 38 C.F.R.
� 1.964(a).

The standard "equity and good conscience" will be applied
when the facts and circumstances of a particular case
indicate a need for reasonableness and moderation in the
exercise of the Government's rights.  The decision of the
Government should not be unduly favorable or adverse to
either the appellant or the Government.  The phrase equity
and good conscience means arriving at a fair decision between
the obligor and the Government and, in making this
determination, consideration will be given to the following
elements, which are not intended to be all-inclusive:
(1) fault of the debtor, (2) balancing of fault between the
debtor and VA, (3) undue hardship of collection on the debtor
and family, (4) whether collection would defeat the purpose
of any existing benefit, (5) whether failure to make
restitution would result in unjust gain to the debtor, and
(6) whether the debtor changed positions to his detriment in
reliance upon a granted VA benefit.  38 U.S.C.A. � 5302;
38 C.F.R. � 1.965(a).

"Fault of the debtor," is defined to be where action or
inaction of the debtor contributed to the creation of the
debt.  38 C.F.R. � 1.965(a)(1).  So defined, the concept of
fault does not mean bad faith or fraud and does not
contemplate any act of moral turpitude or wrongdoing.  Simply
stated, any action or inaction of the veteran which
contributes to creation of the debt constitutes fault.

"Bad faith," according to the applicable regulation,
"generally describes unfair or deceptive dealing by one who
seeks to gain thereby at another's expense," and involves
conduct which "although not undertaken with actual fraudulent
intent, is undertaken with intent to seek an unfair
advantage, with knowledge of the likely consequences."
38 C.F.R. � 1.965(b); Richard v. Brown, 9 Vet. App. 255
(1996).

Analysis:  A clear preponderance of the evidence on file
reveals that the veteran was substantially at fault in the
creation of the loan guaranty indebtedness at issue in this
case.  Having served all or a major portion of his military
career with the Accounting and Finance Department of the U.
S. Air Force (ending as a supervising paymaster and/or
accountant), and apparently then in possession of a private
Realtor license, the veteran (and his other two co-obligors)
assumed the outstanding mortgage and note on the subject home
in Cheyenne, Wyoming, and thereafter failed to make a single
monthly mortgage payment as required under the contracts
executed.  Despite being provided the opportunity over the
last several years, the veteran has never offered any
explanation, or excuse, or reason for his actions.  Clearly,
the reason this home was foreclosed upon and the debt was
created, was because the veteran made no payments as promised
(nor was the home occupied by any obligors as promised) and
there is certainly no evidence on file which shows that he
could not afford those payments in and after the time of his
assumption in May 1986.

Had the RO not previously ruled out a finding of bad faith,
the Board may have found that bad faith existed under the
circumstances.  Given the veteran's experience and background
in finance and real estate, and the absence of any reasonable
explanation, it would be difficult to conclude anything other
than the veteran's failure to make a single payment on the
subject home was undertaken with an intent to seek an unfair
advantage of the Government with knowledge of the likely
consequences.  A finding of bad faith would have precluded
any consideration of waiver of the underlying indebtedness.
In any event, the Board concludes that the veteran is
certainly at fault in the creation of this indebtedness.
There is no evidence that VA is in any way at fault in its
creation.

There is no evidence or argument that the factors of defeat
of the purpose of any existing benefit or unjust enrichment
of the appellant, or that the appellant changed position to
his detriment in reliance upon a granted VA benefit are in
any way relevant to the instant appeal.  The only remaining
relevant issue under those factors which must be considered
in an equity and good conscience determination is undue
hardship of collection on the debtor and that is the sole
focus of the veteran's appeal.

While the veteran has argued that he cannot afford to repay
the loan guaranty debt in this case, the Board disagrees and
concludes that he can indeed afford to repay the debt without
compromising his ability to provide himself and his family
with the basic necessities of life.  The most recent
financial status report reveals that the veteran and his co-
obligor spouse have an annual net income of $46,000.
Additionally, the veteran will attain age 65 in September
2000 and may become entitled to Social Security benefits.

While that most recent financial status report indicates a
monthly net loss in excess of $550, it is clear from a review
of this report that the veteran claimed entitlement to a
monthly expense at Section III of a mortgage payment of
$1,150 and also claimed monthly expenses at Section VI for
first and second mortgages totaling $813 per month.  In
essence, he listed the same mortgage expense twice (although
those separately listed expenses do not add up).  The actual
mortgage statements submitted document monthly mortgage
payments (for principle and interest) of $581 and $232, as
are actually listed at Section VI of the Financial Status
Report, and this totals $813 per month.

An April 1999 mortgage bill on the veteran's rental property
was submitted showing a total amount due of around $1,200 but
the actual monthly mortgage due on that property is only $232
($231.52) as accurately documented at Section VI of the
Financial Status Report.  The remainder of the total amount
due is for past due payments and late charges.  The total
amount due of around $1,200 cannot be accurately referred to
as a monthly payment.  Those late charges and delinquent
payments need only be paid once.  There is no third mortgage
payment documented and, accordingly, the $1,150 listed at
Section III must be deducted in its entirety from monthly
expenses.  This alone alters the monthly balance from a
negative $566 to a positive surplus of $584 left over after
payment of all outstanding monthly expenses.

While the applicable law and regulation governing
consideration of equity and good conscience requires an
evaluation of financial hardship, VA is certainly not
required to waive a substantial obligation to the Government
in consideration of significant debts which are in no way
shown to be related to the basic necessities of life and
which in fact appear to demonstrate a degree of overall
financial irresponsibility.  First, it is clear that while
failing to make a single payment on the subject home giving
rise to the underlying indebtedness, the veteran and his
co-obligor spouse purchased their own home, purchased a
rental property, and recently sold their personal residence
and purchased  another personal residence.  The maintenance
of a rental property, while it may provide some tax
advantage, cannot be considered a necessity of life.
Additionally, the use of a new or substantially new and
expensive sport utility vehicle at a cost of $500 monthly
(with associated listed costs for expenses and insurance of
$210 per month) also cannot be said to be one of life's basic
necessities.  These two listed expenses total well over
$8,000 per year.  There is no documentation of $117 per month
claimed for a student loan.  Also submitted was an itemized
billing showing a $212 monthly bill for a cellular telephone.

Finally, there is certainly little or no indication that any
of the substantial amount of retail credit card debts are in
any way related to basic necessities of life.  Although the
Board and the RO specifically requested the veteran to
itemize all items purchased to create consumer credit debt
and clearly stated that no miscellaneous debts would be
acceptable, the veteran nonetheless listed miscellaneous
debts for most of the consumer credit card debts listed.
There is accordingly no evidence revealing that this
substantial consumer credit debt is in any way related to
life's basic necessities.  Again, the Government is not
required to waive a valid and enforceable loan guaranty
obligation so that a debtor may better be able to repay debts
owed on items entirely unrelated to the basic necessities of
life.

What is clearly revealed in the financial statements and
other evidence submitted is that the veteran and his co-
obligor spouse can well afford to repay the entire loan
guaranty indebtedness in this case with reasonable payments
over a period of years if they exercise a degree of financial
responsibility regarding the incurrence of debts which may
fairly be considered excessive and unnecessary to life's
basic necessities.  The veteran is expected to accord a debt
to the Government the same degree of fidelity and
responsibility he would accord to any other debt.  For these
reasons and bases, it is the decision of the Board that, in
accordance with the principles of equity and good conscience,
considering all of the relevant factors specified in
accordance with 38 C.F.R. �  1.965(a), it would not be unfair
or inequitable to recover $13,645.15 of loan guaranty
indebtedness with interest.  Under the circumstances
described above, collection of this indebtedness would not be
unduly favorably or adverse to the Government or the veteran.

ORDER

Waiver of recovery of loan guaranty indebtedness of $13,
645.15, plus interest on that amount, is denied.

	Gary L. Gick
	Member, Board of Veterans' Appeals


judge_norm: U R POWELL

condition: back

text:
Citation Nr: 0003000
Decision Date: 02/07/00    Archive Date: 02/10/00

DOCKET NO.  98-03 338	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUE

Entitlement to service connection for lumbar disc disease.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jason R. Davitian, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1968 to April
1972, with additional periods of active duty for training,
including from July 5, 1989 to July 23, 1989, and from July
10, 1993 to July 24, 1993.

This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a January 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Cleveland, Ohio (RO), which held that new and material
evidence had not been submitted to reopen the veteran's claim
for service connection for lumbar disc disease, either on a
direct basis or as secondary to the veteran's service-
connected residuals of back injury with limitation of motion.
Implicit in this decision was a finding that February 1996
correspondence from the veteran was a claim for an increased
evaluation for service-connected residuals of back injury
with limitation of motion, and that a June 1995 rating
decision denying service connection for lumbar disc disease
was final.  See 38 U.S.C.A. � 7105(b)(1), (c) (West 1991);
Person v. Brown, 5 Vet. App. 449, 450 (1993).

The Board finds that the February 1996 correspondence from
the veteran may be construed as a notice of disagreement with
the June 1995 rating decision.  In this correspondence, the
veteran states that he wishes to "reopen my claim for
service connection for back injuries that are service
connected," and refers to various low back symptoms that he
relates to herniated discs.  Construing this correspondence
in a liberal manner most favorable to the veteran, the Board
finds that the phrase "service connected," as used by the
veteran, may be construed as "service related," rather than
only a legal term of art.  As such, the Board finds that this
correspondence constitutes a timely notice of disagreement
with the June 1995 rating decision.  38 C.F.R. � 20.201
(1999).  Accordingly, the June 1995 rating decision is not
final and an appeal has been initiated on the issue of
entitlement to service connection for lumbar disc disease on
a de novo basis.

In December 1997, the RO issued the veteran and his
representative a statement of the case (SOC) which
sufficiently apprised the veteran of the applicable law and
relevant evidence for consideration in adjudicating the issue
of entitlement to service connection for lumbar disc disease
on a de novo basis.  Hence, to Remand the case for issuance
of an additional SOC would serve no useful purpose.  A Remand
is inappropriate where there is no possibility of any benefit
flowing to the veteran.  Soyini v. Derwinski, 1 Vet.App. 540
(1991).  As such, the Board finds that the veteran is not
adversely affected by appellate consideration of the issue as
identified on the title page of this decision.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.

2.  The veteran incurred lumbar disc disease during active
duty for training.

CONCLUSION OF LAW

Lumbar disc disease was incurred during active service.
38 U.S.C.A. �� 1110, 1131, 5107 (West 1991); 38 U.S.C.A.
�� 3.303, 3.304 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran maintains, in substance, that he has lumbar disc
disease caused by a lifting injury experienced during July
1989 active duty for training.  As the veteran continues to
suffer from lumbar disc disease, a favorable determination is
requested.

A claimant with active service may be granted service
connection for disease or disability when the evidence
reflects that the disease or disability was either incurred
in or aggravated by active military service.  38 U.S.C.A.
� 1110, 1131; 38 C.F.R. � 3.303, 3.304.  Active military
service includes any period of active duty for training
during which the individual was disabled or died from a
disease or injury incurred or aggravated in line of duty.  38
U.S.C. � 101(24) (1999).

As a preliminary matter, the Board finds that the veteran's
claim for service connection for lumbar disc disease is
"well-grounded" within the meaning of 38 U.S.C.A. � 5107
(West 1991).  See Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
That is, the Board finds that the veteran has presented a
claim which is not implausible when his contentions and the
evidence of the record are viewed in the light most favorable
to that claim.  The Board is also satisfied that all relevant
facts have been properly and sufficiently developed.  VA
examinations have been conducted, and private post-service
medical records and service medical records have been
obtained.

A February 1995 rating decision granted service connection
for residuals of back injury with limitation of motion, with
an assigned evaluation of 20 percent, effective September
1994.  This rating decision deferred a decision as to service
connection for a herniated lumbar disc.  Thereafter, the June
1995 rating decision on appeal denied service connection for
lumbar disc disease, with laminectomies at L4-5 and L5-S1.

The veteran's service medical records reflect that, while on
active duty for training in July 1989, he complained of
tenderness and constant low back pain in the L-5 region.  He
provided that he had been lifting a M-2 burning unit, and
felt a "pop" in his back followed by immediate right side
low back pain.  The veteran was not provided an MRI
examination or a radiographic examination.  The final
assessment was lumbar strain/sprain.  The veteran was given
Ibuprofen, returned to duty, and told not to lift more than
15 lbs.

Post-service private medical records from the Alliance
Community Hospital show that in June 1991, the veteran was
seen for chief complaints of acute lumbosacral strain, and
possible disc disease with intractable pain.  It was reported
that he had been injured approximately one week earlier when
lifting something and felt something pull in his back.  He
had been treated by a physician for acute lumbosacral strain,
and was admitted to rule out lumbosacral disc disease.
Radiographic examination findings were compatible with left
posterolateral L5-S1 disc herniation.  A CT scan resulted in
findings consistent with some disc herniation or asymmetric
disc bulging at L5-S1 on the left.  The final diagnosis was
ruptured disc, L-5, S-1, left, and acute lumbar strain.  He
underwent a lumbar laminectomy with disc excision at L5-S1.

Records from the Aultman Hospital show that in January 1992
the veteran was seen for acute radiculopathy and underwent a
laminectomy with removal of a recurrent herniated disc.  An
MRI was noted to have indicated a herniated disc recurrence
at L4-5 on the left.  The final diagnosis was recurrent disc
rupture, L4-5, left.  A January 1993 radiographic examination
at the Alliance Community Hospital reflected degenerative
changes to the veteran's lower lumbar spine.

The veteran re-injured his lower back while on active duty
for training on July 15, 1993.  He indicated he had
experience a sudden onset of back pain while lifting.  He was
put on bed rest for 72 hours and given Valium.  Treatment
notes made at that time refer to the history of laminectomies
performed in 1991 and 1992.  In August 1993, he reported low
back pain since July 15, 1993.  The assessment was low back
pain with radiculopathy.  A September 1993 MRI resulted in an
impression of 1) findings consistent with central and left of
midline L5/S1 ventral perithecal fibrosis; L5-S1 facette
arthropathy with slight bony encroachment of the lateral
recesses more pronounced on the left than on the right, and
2) mild symmetric L3-4 and L4-5 disc bulging, possible small
subligamentous disc herniations.

The report of a January 1995 VA spine examination provides
that the veteran reported he had injured his back in 1989.
It was noted he later was found to have herniated disc
disease and underwent laminectomies in 1991 and 1992 at the
L4, L5 level for disc disease and left leg pain.  It was also
noted as medical history that he re-injured his back in 1993,
and since that point had suffered from increasing back and
leg pain, numbness, tingling and parasthesias.  Radiographic
examination resulted in a pertinent assessment of
degenerative osteoarthritis with left scoliosis.  The final
diagnosis was residual post-operative herniated lumbar disc.

In June 1996, the veteran underwent a VA spine examination.
He complained of back and leg pain.  Physical examination
resulted in a pertinent diagnosis of radicular symptoms
secondary to neural foraminal stenosis at the L5, S1 region;
and back pain secondary to foraminal stenosis at L5-S1.

The report of an August and September 1996 VA hospitalization
shows that the veteran complained of leg pain, left greater
than the right, that had become more progressive.  He
underwent L5 decompression; L4-L5, L5-S1 and S1
foraminotomies; and L5-S1 fusion.

The veteran's claims file contains an April 1998 report from
Donald E. Carter, M.D., along with corresponding treatment
records.  Dr. Carter related that he had first seen the
veteran in 1981, and that the veteran had no back problems
until 1989 when he injured his back at National Guard Camp.
It was noted the veteran subsequently had surgery in 1991 for
a ruptured disc in the same area, followed by surgeries in
1993 and 1996.  Dr. Carter expressed the opinion that the
veteran's 1989 injury directly weakened the veteran's back
making it easier to cause, and was therefore causally related
to, the 1991 injury, directly related to the 1993 injury and
the 1996 injury.

The veteran was provided a VA spine (cervical, thoracic and
lumbar) examination in June 1998.  He complained of chronic
back and leg pain.  Radiographic examination resulted in an
impression of minimal degenerative arthritic changes of the
lumbosacral spine.  Physical examination resulted in a final
diagnosis of lumbosacral strain, and residuals of post-
operative lumbar disc disease.  The examiner concluded that,
based on examination and basic reasonable medical probability
and certainty, after three operations, he could not ascertain
what any relationship would be from the veteran's 1989 strain
since he had other injuries and multiple operations.
Consequently, the examiner said that he could not tell as to
what extent the veteran's strain in 1989 led to his disc
disease in 1991.  The examiner noted that there was nothing
in the records to document any disc disease in 1989 that was
documented after his 1991 surgery and hospitalization and
subsequent surgery.

The veteran was also provided a VA neurologic examination in
June 1998.  The veteran complained of constant back pain
radiating to his left leg and sometimes to his right leg.  He
was unable to walk more than 20 feet without stopping.
Physical examination resulted in a diagnosis of post-surgical
status diskectomy with fusion of L5-S1 with ruptured and
degenerative disc disease; mild rupture of L4-L5 and possibly
L3 and L4, though there was no record of radiculopathy from
the time of the first back injury until the second in 1991
when radiculopathy appeared in Dr. Carter's medical notes.
The examiner expressed the opinion that based on review of
the records, history and neurological examination, the first
injury (in 1989) was severe enough to weaken the ligaments
holding the discs until the second injury which aggravated
the first and contributed to it, as did the subsequent
injuries, due to the weakened ligaments this made it easier
for the discs to rupture.

The same VA examiner provided an addendum in July 1998.  He
stated that after review of the case and discussion with the
VA examiner from the veteran's June 1998 VA spine (cervical,
thoracic and lumbar) examination, he rescinded his earlier
opinion regarding weakening of spinal ligaments as he could
not be reasonably sure of this.  He stated that he concurred
with the June 1998 VA spine examiner.

Based on a careful review of the evidence of record, the
Board finds that the evidence regarding this claim is at
least in equipoise.  With resolution of doubt in the
veteran's favor, the evidence warrants service connection for
lumbar disc disease.  38 U.S.C.A. � 5107(b); 38 C.F.R. �
3.102 (1999).

In this regard, the Board points to Dr. Carter's clinical
opinion that the veteran's 1989 back injury, incurred while
he was on active duty for training, was causally related to
his later back injuries, with diagnosis of a ruptured disc,
and surgeries thereafter.  Dr. Carter's opinion is probative
and material, as it is supported by an accurate history of
the veteran's condition and a well-reasoned explanation.

Similarly, the Board points to the June 1998 VA opinion that
the veteran's 1989 injury was severe enough to weaken the
ligaments holding his spinal discs, making it easier for the
discs to rupture, until the second injury which aggravated
and contributed to the first.  This opinion is also probative
and material, as it is supported by an accurate history of
the veteran's condition and a well-reasoned explanation.

On the other hand, the Board finds that the July 1998 VA
addendum rescinding the June 1998 VA nexus opinion is less
material and probative.  It is conclusory and offers no
explanation for the examiner's change of opinion.  Also, the
addendum does not rule out the possibility that the veteran's
1989 injury resulted in his later lumbar disc disease.
Finally, although the June 1998 VA medical opinion against
the veteran's claim is probative and material in that it
provides an accurate history of the veteran's condition and a
well-reasoned explanation, it simply does not out-weigh the
clinical evidence in favor of the veteran's claim.

In light of the above, and resolving all doubt in the
veteran's favor, service connection for lumbar disc disease
is granted.

ORDER

Service connection for lumbar disc disease is granted.

	U. R.  POWELL
	Member, Board of Veterans' Appeals


judge_norm: STEVEN L COHN

condition: gi

text:
Citation Nr: 0005000
Decision Date: 02/25/00    Archive Date: 03/07/00

DOCKET NO.  98-19 159	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska

THE ISSUE

Entitlement to service connection for a stomach disorder.

REPRESENTATION

Appellant represented by:	John Stevens Berry, Attorney

ATTORNEY FOR THE BOARD

L. J. Nottle, Counsel

INTRODUCTION

The veteran served on active duty from February 1968 to
October 1969.  He also had a period of active duty for
training in excess of four years prior to February 1968, when
he was called up.  His claim comes before the Board of
Veterans' Appeals (Board) on appeal from a July 1998 rating
decision of the Department of Veterans Affairs (VA) Regional
Office in Lincoln, Nebraska (RO), which denied the veteran's
claims for service connection for a stomach disorder,
bilateral hearing loss, and tinnitus.

By rating decision dated October 1999, the RO granted the
veteran's claims for service connection for bilateral hearing
loss and tinnitus; therefore, these claims are not before the
Board for appellate review.  The RO also denied the veteran's
claim for service connection for a back disorder.  In October
1999, the veteran submitted a notice of disagreement with the
RO's October 1999 denial of his back claim.  The Board
addresses this matter in the Remand section of this decision.

FINDINGS OF FACT

1.  There is no medical evidence of record linking a stomach
disorder to the veteran's gastrointestinal complaints treated
in service, or establishing that an ulcer manifested to a
degree of 10 percent within a year of the veteran's discharge
from service.

2.  There is no medical evidence of record establishing that
the veteran had a chronic stomach disorder in service, or
linking a stomach disorder to any continuity of
gastrointestinal symptomatology experienced after discharge
from service.

3.  The issue before the Board does not involve a question of
medical complexity or controversy.

CONCLUSIONS OF LAW

1.  The claim of entitlement to service connection for a
stomach disorder is not well grounded.  38 U.S.C.A. � 5107(a)
(West 1991).

2.  Securing an advisory medical opinion from an independent
medical expert is not warranted.  38 U.S.C.A. � 7109 (West
1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The issue before the Board is whether the veteran is entitled
to service connection for a stomach disorder.  Before the
Board can decide the merits of the veteran's claim, it must
first determine whether the veteran has presented evidence
sufficient to justify a belief by a fair and impartial
individual that his claim is well grounded.  38 U.S.C.A.
� 5107(a) (West 1991).  A well-grounded claim is one that is
plausible, capable of substantiation or meritorious on its
own.  Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990).  To be well grounded, a
claim need not be conclusive, but 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 claimant in developing
the facts pertinent to his claim and his claim fails.  Epps
v. Gober, 126 F.3d 1464, 1467-1468 (Fed. Cir. 1997).

To establish that a claim for service connection is well
grounded, the record must include lay or medical evidence,
whichever is appropriate in the particular case,
demonstrating that a disease or injury was incurred or
aggravated during active service, and medical evidence
showing that the veteran currently has a disability, and that
a nexus exists between that disability and the in-service
injury or disease.  Id. at 1467-1468.  Service connection may
be presumed if it is shown that the veteran manifested peptic
(gastric or duodenal) ulcers to a degree of ten percent
within one year of separation from service.  38 C.F.R. ��
3.307, 3.309(a) (1999).

A claimant may also establish a well-grounded claim for
service connection under the chronicity provision of
38 C.F.R. � 3.303(b) (1999), 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
regulation 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).

The veteran served on active duty from February 1968 to
October 1969.  He also had a period of active duty for
training in excess of four years prior to his February 1968
call to active duty.  His service medical records reflect
that he was treated for stomach complaints during both
periods of service.  In April 1964, prior to the veteran's
period of active duty, the veteran sought treatment for pain
in his lower abdomen and occasional vomiting.  During this
visit, he reported that while he was home on leave, he saw a
physician who diagnosed an ulcer based on results of a
gastrointestinal (GI) study.  In response to the veteran's
statements, another upper GI study was conducted (including
multiple films of the duodenal bulb and antrum).  A report of
this study shows a normal esophagus, stomach, duodenal bulb
and duodenal loop, no acute or chronic ulcerative disease,
and no abnormalities.

In April 1968, during a period of active duty, the veteran
sought treatment for stomach pains.  He reported that he had
been having stabbing epigastric pain, mainly on an empty
stomach, for one year.  An upper GI study revealed: an
irregularity along the greater curvature of the stomach,
suggestive of prominent mucosal folds, without definite
demonstration of an ulcer crater; a suggestive area of
ulceration near the apex portion of the bulb; and a normal
proximal small bowel.  Based on the suspiciousness of the
greater curvature as well as the duodenal bulb, the veteran
was advised to undergo another upper GI study within the next
three weeks.

In May 1968, the veteran underwent the recommended follow-up
upper GI tract series, and was shown to have a normal upper
GI tract.  Specifically, a physician noted that the veteran
had: free and easy transit of barium from the esophagus to
the stomach without evidence of a hiatal hernia or esophageal
varices; a normal "J" type stomach with good tone and
peristalsis and no extrinsic or intrinsic lesions; and a
duodenal bulb that filled adequately without evidence of
ulceration.  By June 1968, the veteran was still complaining
of abdominal pain.  During a separation examination in
September 1969, the veteran did not report, and the examining
physician did not note, any stomach abnormalities.

In August 1997, the veteran filed an application for service
connection for a stomach disorder.  Therein he indicated that
he had been treated for this disorder in service from April
1968 to October 1969, and by Stuart P. Embury, M.D., from
1975 to the present.

Records of the veteran's treatment by Dr. Embury include
laboratory results dated from 1980, progress notes dated from
1991, and an operation report dated in 1993.  The progress
notes reflect that the veteran was treated from 1991 to 1997
for multiple disorders unrelated to his stomach.  They also
reflect that, during a physical evaluation conducted in
August 1993, he had no GI complaints, was noted to have an OK
stomach, and was diagnosed with a right reducible hernia.
Several days later, the veteran underwent a right cooper
ligament inguinal herniorrhaphy.

The claims file also contains outpatient treatment records
from a VA Medical Center, the White-Musselman Hearing Aid
Center, and the Grand Island Ear, Nose & Throat Clinic, a
letter from Craig A. Foss, M.C.D., a questionnaire completed
by the veteran in September 1999, and a VA examination report
dated September 1999.  This evidence does not include any
findings related to the veteran's alleged stomach disorder.

The evidence in this case does not establish that the veteran
currently has a stomach disorder.  However, the Board will
assume for the sake of further discussion that the veteran's
hernia, discovered and repaired in August 1993, constitutes
sufficient evidence of a current stomach disorder.  That
notwithstanding, there is no evidence, beyond the veteran's
contentions, linking this disorder to the veteran's
gastrointestinal complaints treated in service.  Moreover, a
nexus may not be presumed in this case because there is no
evidence establishing that an ulcer manifested to a degree of
10 percent within a year of the veteran's discharge from
service.  In fact, despite the fact that the veteran was
shown to have an irregularity of the stomach during active
duty, he has never been diagnosed with an ulcer.

There is also no evidence, beyond the veteran's contentions,
establishing that the veteran had a chronic stomach disorder
in service, or linking any current stomach disorder to
continuity of gastrointestinal symptomatology allegedly
experienced after discharge from service.  As the veteran is
a layperson with no medical training or expertise, his
contentions, alone, are insufficient to establish any of the
previously noted elements of a well-grounded claim.  Espiritu
v. Derwinski, 2 Vet.App. 492, 494-5 (1992) (holding that
laypersons are not competent to offer medical opinions).  The
veteran has not submitted evidence of a well-grounded claim.
Therefore, his claim must be denied.

The Board acknowledges the contentions of the veteran's
representative, which include: (1) that the complexity of the
issue and inadequacy of the VA examination warrant an
advisory/independent medical opinion; (2) that the current
examination did not provide a nexus or etiology for the
claimed condition; (3) that the veteran's claim warrants
application of 38 C.F.R. � 3.102, the reasonable doubt
doctrine; and (4) that the veteran is entitled to adequate
reasons and bases for a denial.

With regard to the first contention, the Board notes that,
according to statute, an opinion of an independent medical
expert may be obtained in cases where the issue under
consideration is of such medical complexity or controversy
that it justifies soliciting an opinion from an independent
medical expert.  38 U.S.C.A. � 7109 (West 1991).  However,
the issue in this case is neither complex nor controversial;
therefore, solicitation of a medical opinion from an
independent medical expert is not warranted.

With regard to the second contention, the Board points out
that the veteran has not undergone a VA examination of his
stomach.  Regardless, the veteran is not entitled to a VA
examination for the purpose of obtaining an opinion as to the
etiology of his alleged stomach disorder.  Case law is clear:
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 his claim must be denied.  Epps
v. Gober, 126 F.3d at 1467-1468.

Finally, with regard to the third and fourth contentions, the
Board believes that the Statement of the Case and the above
discussion provide adequate reasons and bases for its denial,
and inform the veteran of the elements necessary to well
ground his claim in the future.  The veteran is not entitled
to the benefit of the doubt in resolving his claim because he
has not submitted a well-grounded claim.  Should he submit a
well-grounded claim in the future, 38 C.F.R. � 3.102 will be
triggered.

ORDER

Evidence of a well-grounded claim not having been submitted,
entitlement to service connection for a stomach disorder is
denied.

REMAND

In October 1999, the RO denied, in pertinent part, the
veteran's claim for service for a back disorder.  In December
1999, the RO forwarded to the Board a notice of disagreement
signed by the veteran, which disputed the RO's October 1999
denial of his back claim.  To date, the RO has not issued a
Statement of the Case in response to the veteran's letter.

The failure to issue a Statement of the Case in such a
circumstance renders a claim procedurally defective and
necessitates a Remand.  Godfrey v. Brown, 7 Vet.App. 398,
408-10 (1995); see also Archbold v. Brown, 9 Vet.App. 124,
130 (1996).  After the RO has been given the opportunity to
cure such a defect, the claim will be returned to the Board
only if the veteran perfects his appeal in a timely manner.
Smallwood v. Brown, 10 Vet.App. 93, 97 (1997); see also In re
Fee Agreement of Cox, 10 Vet.App. 361, 374 (1997) ("absent
an NOD, an SOC and a Form 1-9 [substantive appeal], the BVA
was not required--indeed, it had no authority--to proceed to
a decision") (citation omitted).

Appellate consideration of the veteran's back claim is
deferred and this claim is remanded to the RO for the
following development:

The RO should furnish the veteran and his
representative a Statement of the Case
addressing the issue of entitlement to
service connection for a back disorder,
and afford them an opportunity to perfect
an appeal of the RO's denial of this
issue by submitting a substantive appeal
in response thereto.  The RO should
advise the veteran that the claims file
will not be returned to the Board for
appellate consideration of his back claim
following the issuance of the Statement
of the Case unless he perfects his
appeal.

The purpose of this REMAND is to afford the veteran due
process of law, and the Board does not intimate any opinion,
favorable or unfavorable, as to the merits of the veteran's
back claim.  The veteran is free to perfect his appeal of the
denial of this issue and to submit any additional evidence he
wishes to have considered in connection with this appeal.
However, he is not obligated to act unless otherwise
notified.

	STEVEN L. COHN
	Member, Board of Veterans' Appeals