BVA9503812 DOCKET NO. 93-04 236 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for cataracts. 2. Entitlement to service connection for compound hyperopic astigmatism. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for benign prostatic hypertrophy. 5. Entitlement to service connection for beriberi. 6. Entitlement to service connection for dysentery. 7. Entitlement to service connection for helminthiasis. 8. Entitlement to service connection for malnutrition. 9. Entitlement to service connection for malaria. 10. Entitlement to service connection for a scar of the left back. 11. Entitlement to service connection for flexion deformity of the 5th finger on the right hand. 12. Entitlement to service connection for compression fracture, L1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sheila A. Lawson, Associate Counsel INTRODUCTION The veteran had active service from September 9, 1941, to May 9, 1942, and from May 11, 1945, to June 30, 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1991 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for cataracts, compound hyperopic astigmatism, hearing loss, benign prostatic hypertrophy, beriberi, dysentery, helminthiasis, malnutrition, malaria, a scar of the left back, flexion deformity of the 5th finger on the right hand (finger disability), and compression fracture, L1. He asserts that he was a prisoner of war (POW) of the Japanese government, and that during his confinement, he suffered from beriberi, dysentery, helminthiasis, malnutrition, and malaria. He also asserts that while confined, he sustained hearing loss when he was slapped on the ears by one of his captors. He also asserts that he incurred a finger disability when he put his right arm up when fending off a blow from a rifle butt. He also claims that while attempting to flee from his captors, he either was stabbed in the back with a sword or a bayonet or was hit with a shell. The veteran does not present any specific contentions in support of his other claims. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. After review of the relevant evidence in this matter, and for the following reasons and bases, the Board concludes that the veteran's claims for service connection for cataracts, benign prostatic hypertrophy, beriberi, dysentery, helminthiasis, malnutrition, malaria, finger disability and compound hyperopic astigmatism are not well grounded. The Board further concludes that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for hearing loss, a scar of the left back resulting from a stab wound, and compression fracture, L1. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran was not a prisoner of war. 3. The claim for service connection for cataracts is not plausible. 4. The claim for service connection for benign prostatic hypertrophy is not plausible. 5. The claim for service connection for beriberi is not plausible. 6. The claim for service connection for dysentery is not plausible 7. The claim for service connection for helminthiasis is not plausible. 8. The claim for service connection for malnutrition is not plausible. 9. The claim for service connection for malaria is not plausible. 10. The claim for service connection for compound hyperopic astigmatism is not plausible. 11. Hearing loss in the veteran's right ear had its onset in the year following the veteran's discharge from service and probably resulted from postservice trauma. 12. Hearing loss in the veteran's left ear was not present within a year of his discharge from service and is not shown to be etiologically related to service. 13. A scar of the left back was not present during service and is not shown to be etiologically related to the veteran's recognized period of service. 14. A right 5th finger deformity was not present during service and is not shown to be etiologically related to the veteran's recognized period of service. 15. The veteran sustained a fracture of L1 as a result of a jeep accident in October 1946, subsequent to his recognized period of active service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for cataracts is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for benign prostatic hypertrophy is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for beriberi is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim of entitlement to service connection for dysentery is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The claim of entitlement to service connection for helminthiasis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 6. The claim of entitlement to service connection for malnutrition is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 7. The claim of entitlement to service connection for malaria is not is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 8. The claim of entitlement to service connection for compound hyperopic astigmatism is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 9. Hearing loss was not incurred in or aggravated by the veteran's service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.301(a), 3.303, 3.307, 3.309 (1994). 10. A scar of the left back was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). 11. Flexion deformity of the 5th finger on the right hand was not incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). 12. A compression fracture, L1 was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board must determine whether the veteran has submitted evidence of well-grounded claims. If he has not, his appeals must fail, and VA is not obligated to assist him in the development of the claims. 38 U.S.C.A. § 5107(a) (West 1991). For the reasons set forth below, the Board finds that the veteran has not met his burden of submitting evidence to support a belief that his claims of entitlement to service connection for cataracts, benign prostatic hypertrophy, beriberi, dysentery, helminthiasis, malnutrition, malaria and compound hyperopic astigmatism are well grounded. Id.; see Grottveit v. Brown, 5 Vet.App. 91 (1993); Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board finds, however, that the remainder of the veteran's claims are well grounded, and is satisfied that all relevant evidence has been obtained and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In his affidavit for Philippine Army Personnel signed in January 1947, the veteran indicated that he was a POW from March 10, 1943, to March 14, 1943, in Binalonan, Pangasinan. He reported that he was released on March 15, 1943, and joined the Eastern Pangasinan Guerrillas in Pozorrubio, Pangasinan under Captain French from March 16, 1943, to April 30, 1943. He also indicated that he was a Relief Worker with the Bureau of Public Welfare from May 1 to May 30, 1943, and was with the 10th Infantry, FACGF, Castaneda Unit in Batangas under Lieutenant Colonel R. Geluz from June 1, 1943, to September 12, 1944. The veteran further reported that from September 30, 1944, to May 5, 1945, he was with the Blue Eagle Command, Batangas, under Lieutenant E. Alabastro, and that on May 11, 1945, he underwent Philippine Army processing at Camp Murphy. He also reported a history of dysentery and malaria during the period from January to May 1942, but did not report a history of any of the other disabilities at issue in this case. With reference to his alleged POW experience, the record shows that in addition to the above-mentioned affidavit, in which he set forth a date on which he was released from his alleged captivity, the veteran, in his October 1990 Application for Compensation and Pension and his May 1991 Report of POW Medical History, stated that he could not remember the date of his release from captivity. Moreover, during a June 1991 VA psychosocial survey, the veteran reported that he was held prisoner for one month, and in a January 1991 statement titled Record of My Military Activities, the veteran claimed that he was a POW from February 26, 1943, to March 10, 1943. In a document entitled Amplification, also dated in January 1991, the veteran stated that he was captured during the first week of March 1943 and released approximately one week later. He subsequently stated in the same paragraph that he was released 2 days after being captured. In his January 1991 statements, the veteran made no specific reference to being slapped, hit with a rifle butt, or stabbed while trying to escape. In January 1991, the veteran also mentioned, for the first time, that a Dr. Rous secured his release by convincing his captors that the veteran was not a guerrilla, but rather one of his patients from the barrio. Further, the veteran's name is not among those living POWs listed on a POW microfiche, dated in August 1986, a copy of which is of record. The veteran's service medical records are negative for any complaint, treatment or diagnosis of cataracts, benign prostatic hypertrophy, beriberi, dysentery, helminthiasis, malnutrition, malaria, hyperopic astigmatism , left back scar or finger disability. They also show that no evidence of any of these claimed disabilities was found on his discharge examination of April 1946. In addition they show that in October 1946, he was involved in a jeep accident, which rendered the veteran unconscious for 5 hours and resulted in bleeding from the right ear and a compression fracture, L1. Medical records dated in November 1946 show that in addition to the above-mentioned compression fracture, the veteran suffered hearing loss in his right ear which was found to be the probable result of trauma sustained in the accident. The records also indicate during a November 1946 examination, an examiner noted, inter alia, that the veteran was right handed, that his extremities were negative for any abnormalities and that his handwriting was normal. The examiner did not report any abnormality of the veteran's fingers. In May 1991, when completing a POW medical history, the veteran indicated that he was in good health and that he had no ailments, deficiencies or abnormalities. A July 1991 POW Protocol examination report reflects that the veteran gave a history of having incurred various injuries and suffered from malaria, dysentery and malnutrition as a POW. Upon physical examination, the examiner noted the absence of any evidence of beriberi, dysentery, helminthiasis, malaria or malnutrition. The examiner diagnosed the veteran as having, inter alia, mature cataract of the right eye, incipient cataract of the left eye, compound hyperopic astigmatism of the left eye, profound sensorineural hearing loss of the right ear, benign prostatic hypertrophy, scar of the left back due to an alleged stab wound, and finger disability, due to an alleged rifle butt injury. However, the report of a May 1991 VA audiological evaluation also shows that sensorineural hearing in the left ear was found. In December 1991, the veteran testified at a hearing at the RO. During his testimony, the veteran reiterated that he had been struck by a rifle butt and slapped on the ears while a POW. The veteran also testified, contrary to his earlier statements that his back scar was a residual of having been stabbed with a bayonet or a sword, he incurred this scar when he was hit by a shell while trying to escape. He also read into the record several pieces of correspondence from VA, and testified that he had not received any medical treatment for any condition from the time of his release from service in the late 1940's until 1988 or 1989. I. POW Status Section 1112(b) of Title 38, United States Code Annotated (West 1991), provides that in the case of a veteran who is a former POW and who was detained or interned for not less than thirty days, when certain diseases, such as beriberi, chronic dysentery, helminthiasis, and malnutrition that become manifest to a degree of 10 percent or more after service shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of such disease during that period of service. Nonetheless, because the veteran's only creditable active service was from September 9, 1941, to May 9, 1942, and from May 11, 1945, to June 30, 1946, his alleged confinement as a POW was in 1943, and the service department has certified that he was not a prisoner of war of the Japanese Government, he is not entitled to prevail under this statute. Moreover, there is no evidence that the veteran presently has any manifestations or residuals of these diseases. II. Entitlement to service connection for cataracts, benign prostatic hypertrophy, beriberi, dysentery, helminthiasis, malnutrition, malaria and compound hyperopic astigmatism. As indicated previously, when claiming entitlement to VA benefits, a claimant first must submit evidence to justify a belief that such a claim is well grounded. Grottveit, at 92; Tirpak, at 611. When, as here, a determinative issue involves a medical diagnosis or medical causation, competent medical evidence is required to establish a well-grounded claim. Grottveit, at 93. In the present case, the record is entirely negative for any medical evidence of cataracts, benign prostatic hypertrophy, beriberi, dysentery, helminthiasis, malnutrition, malaria or compound hyperopic astigmatism during the veteran's service. Although a history of dysentery and malaria was reported by the veteran in his processing affidavit, no residuals of either was found on his discharge examination. There is no clinical evidence linking the veteran's cataracts, compound hyperopic astigmatism or benign prostatic hypertrophy, first diagnosed during the July 1991 VA examination, to his military service. Moreover, there is no postservice medical evidence suggesting that the veteran currently has beriberi, dysentery, helminthiasis, malnutrition, malaria or any residuals of these diseases. Furthermore, as the veteran testified in December 1991, he did not receive medical attention for any disabilities from the time of his separation until 1988 or 1989. Although the veteran has expressed his opinion that such disabilities exist and are the result of his military service, he is not qualified, as a lay person, to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Accordingly, without the requisite competent medical evidence establishing that the veteran's claims are plausible, he has not met his burden of submitting evidence that his claims of entitlement to service connection for these disabilities are well grounded. Grottveit at 92; Tirpak at 611. Although the Board has considered and denied these appeals on a ground different from that of the RO, that is, whether the veteran's claims are well grounded rather than whether he is entitled to prevail on the merits, the veteran has not been prejudiced by our decision. In assuming that the claims were well grounded, the RO accorded the veteran greater consideration than his claims warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the veteran's claims are well grounded would be pointless, and in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49, 747 (1992). III. Entitlement to service connection for hearing loss, scar of the left back, finger disability and compression fracture, L1. With reference to the veteran's allegations that he sustained hearing loss, a finger disability and a scar of the left back while he was being held as a prisoner of the Japanese government, the Board notes that the evidence of record contradicts the veteran's claims. As noted earlier, the veteran claimed that these disabilities stemmed from his having been mistreated while a POW, yet the period in which he alleges that these injuries were incurred, March 1943, is not a recognized period of service for VA benefits purposes. The record also shows that the veteran sustained a compression fracture, L1 and right ear hearing loss as a result of a jeep accident that occurred in October 1946. Further, the medical evidence of record, subsequent to the October 1946 accident is negative for any findings pertaining to a left back scar or a finger disability. In view of this accident and the resulting injuries having occurred after the veteran's recognized period of active service, that ended on June 30, 1946, he is not entitled to service connection for these disabilities. See 38 C.F.R. §§ 3.8(c),(d), 3.9 (1993). The Board does not dispute the presence of hearing disability, a scar on the veteran's back or a finger deformity, as these conditions were noted on his July 1991 VA examination. However, in light of the veteran's having testified under oath as to his entitlement to certain disabilities as a result of alleged mistreatment as a POW in 1943 when the record clearly shows that one of these injuries, his right ear hearing loss, resulted from a 1946 motor vehicle accident, the Board finds that the veteran's testimony is not credible. Further, the Board notes that apart from the veteran's allegations that he incurred finger disability and a scar on his lower back as a result of his alleged POW experience, the medical evidence of record is silent as to the presence of either disability prior to the 1991 VA examination. In view of the evidence of record that the veteran is not entitled to POW status, the evidence that his credibility is questionable, the medical evidence demonstrating that the veteran's hearing loss resulted from an incident unrelated to his military service, and the absence of any inservice medical evidence pertaining to a finger deformity or a scar of the left back, the Board concludes that the preponderance of the evidence is against his claim of entitlement to service connection for these disabilities. ORDER 1. The claim for entitlement to service connection for cataracts is dismissed. 2. The claim for entitlement to service connection for hyperopic compound astigmatism is dismissed. 3. The claim for entitlement to service connection for benign prostatic hypertrophy is dismissed. 4. The claim for entitlement to service connection for beriberi is dismissed. 5. The claim for entitlement to service connection for dysentery is dismissed. 6. The claim for entitlement to service connection for helminthiasis is dismissed. 7. The claim for entitlement to service connection for malnutrition is dismissed. 8. The claim for entitlement to service connection for malaria is dismissed. 9. The claim for entitlement to service connection for flexion deformity of the 5th finger on the right hand is denied. 10. The claim for entitlement to service connection for hearing loss is denied. 11. The claim for entitlement to service connection for a scar of the left back is denied. 12. The claim for entitlement to service connection for fracture of L1 is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.