Meyer v. Brown

9 Vet. App. 425, 1996 U.S. Vet. App. LEXIS 769, 1996 WL 578308
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 7, 1996
DocketNo. 94-850
StatusPublished
Cited by30 cases

This text of 9 Vet. App. 425 (Meyer v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meyer v. Brown, 9 Vet. App. 425, 1996 U.S. Vet. App. LEXIS 769, 1996 WL 578308 (Cal. 1996).

Opinion

STEINBERG, Judge:

The appellant, Vietnam veteran Lee Meyer, appeals an August 3, 1994, Board of Veterans’ Appeals (BVA or Board) decision denying a claim for service connection for Crohn’s disease. Record (R.) at 6. Both parties have filed briefs, and the appellant has filed a reply brief. For the reasons that follow, the Court will vacate the Board decision and remand the matter.

I. Background

The veteran served on active duty in the U.S. Army from August 1966 to May 1969, including a tour of duty in Vietnam, and in the U.S. Navy from December 1976 to June 1977. R. at 18, 20. August 1966 induction and May 1969 separation medical examination reports showed no relevant abnormalities. R. at 25-26, 30-31. Service medical records (SMRs) for that period of service did not record any complaint of or treatment for an intestinal condition or Crohn’s disease. R. at 27-29, 36-57. (Crohn’s disease is “a chronic granulomatous inflammatory disease of unknown etiology, involving any part of the gastrointestinal tract”, DORLAND’S ILLUSTRATED Medical Dictionary 480 (28th ed. 1994) [hereinafter Dorland’s].) The veteran’s December 1976 induction medical examination report showed no relevant abnormalities. Supplemental (Suppl.) R. at 1-2.

January and February 1977 SMRs showed that the veteran was treated for complaints of urinary problems (including prostatitis) and low back pain. R. at 72-73, 92. An orthopedic consultation report in February 1977 noted that he reported difficulty with both urination and bowel movements, but the report did not confirm prostatitis and concluded that low back pain was due to trauma from a fall in December 1976. R. at 79-80; see R. at 83-84. A February 1977 letter from Dr. Meyer (the veteran’s father), addressed “To 'Whom it May Concern”, seemed to indicate, although it did not clearly so state, that the veteran might have Reiter’s syndrome, ulcerative colitis, or Crohn’s disease. R. at 68-69. (Reiter’s syndrome consists of “a triad of symptoms of unknown etiology comprising urethritis, conjunctivitis, and arthritis (the dominant feature)”, Dor-land’s at 1638.) The veteran was diagnosed in March 1977 with chronic low back pain (R. at 63), a recent upper respiratory infection, and “other complaints largely related to concern about his future and recent circumstances” (R. at 63, 66). The examination report noted that “[n]o other evidence of a disease process was seen”. R. at 66. March 1977 outpatient records contain no diagnosis of Reiter’s syndrome but noted that it should be “ruled out” — that is, that further study was needed as to the possibility of that diagnosis. R. at 64. The veteran was separated in June 1977 due to chronic low back pain. R. at 67.

Outpatient Department of Veterans Affairs (VA) records state that the veteran was diagnosed with chronic low back pain in October 1977 and August 1986. R. at 126, 132. He reported back surgery in 1986, with improvement until 1989 when he again had onset of back pain. R. at 166. In 1987, a VA regional office (RO) decision granted service connection for a herniated lumbar disc, rated 20% disabling. R. at 248. In February 1990, he complained of bloody stools. R. at 155. A sigmoidoscopy was normal, and he was advised to increase his fiber intake. R. at 157.

In June 1991, the veteran was hospitalized for evaluation of his back problem, and mye-logram and computerized axial tomographic tests were normal. R. at 200. His hospital discharge summary noted that he had had no “bowel or bladder” disfunctions. R. at 199. [428]*428A September 1991 VARO decision awarded an increased disability rating of 40% for Ms back condition. R. at 248. A radiology report in November 1991 stated that barium x-rays of the small bowel were “strongly suggestive of regional ileitis or Crohn’s disease.” R. at 112. That month, the veteran filed with the RO an application for service connection for Crohn’s disease, stating that he had had the disorder since service. Suppl. R. at 8. December 1991 VA medical clinic records diagnosed Crohn’s disease, and noted a “long Mstory of diarrhea — on and off’. R. at 113,190, 215. In a January 1992 letter to an RO vocational rehabilitation officer, the veteran stated that he was unable to work due to Ms back pain and Crohn’s disease. R. at 258.

In a January 1992 statement, the veteran argued that “the [intestinal] disorder was first diagnosed [in service] as being Reiter’s” but that the correct diagnosis at that time should have been Crohn’s disease. R. at 262. In February 1992, the RO demed an increased rating for the back condition and service connection for Crohn’s disease. R. at 264. In April 1992, the veteran submitted a Notice of Disagreement (NOD), enclosing articles on inflammatory bowel disease (R. at 298-301) and letters from two siblings and Ms mother (R. at 319, 321, 323). The letters stated that the veteran had been treated by Ms father for Crohn’s disease from the time the veteran had left service until Ms father died in 1990. An April 1992 Statement of the Case (SOC) mentioned the medical articles but did not refer to the family letters. R. at 306-09.

In the August 3, 1994, BVA decision here on appeal, the Board concluded that the veteran had not submitted a well-grounded claim for service connection for Crohn’s disease. R. at 6. The Board found as follows: (1) The veteran’s SMRs showed treatment in 1977 for intestinal flu, but not for Crohn’s disease or any related condition; (2) at separation from service in 1977 there was no indication of an intestinal problem; (3) the February 1977 letter from Dr. Meyer did not state that the veteran had Crohn’s disease, but merely noted that Ms symptoms could possibly stem from Reiter’s syndrome or ul-cerative colitis, and that Crohn’s disease was a related condition; (4) the October 1977 VA examination report had described the veteran’s digestive system as normal; (5) Crohn’s disease was not diagnosed until 1991; and (6) there was no medical evidence linking the current diagnosis of Crohn’s disease to service. R. at 7-9. The Board noted that the veteran had presented statements that he had had Crohn’s disease since service, but found that Ms statements were “inherently incredible” because they contradicted Ms 1977 statements, as to his medical Mstory up to that pomt, that he had not had any Mstory of stomach or intestinal trouble. R. at 7. The Board “dismissed” the claim and “vacated” the February 1992 RO decision. R. at 10.

II. Analysis

A. Well-Grounded Claim

Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[A] person who submits a claim for benefits under a law admimstered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” The Court has defined a well-grounded claim as follows: “[A] plausible claim, one wMch is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the imtial burden of [section 5107(a) ]”, Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990), that the claim be “plausible” or “possible”, Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A well-grounded claim requires a medical diagnosis of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and a current disability. See Coluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table);

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9 Vet. App. 425, 1996 U.S. Vet. App. LEXIS 769, 1996 WL 578308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyer-v-brown-cavc-1996.