BVA9506302 DOCKET NO. 92-03 769 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a urinary stricture. 2. Entitlement to service connection for schistosomiasis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from April 1968 to January 1971. Service connection was denied for a urinary stricture by the Cleveland, Ohio RO in August 1989. The veteran appealed, and his case has subsequently been handled by regional offices in Louisville, Kentucky; Huntington, West Virginia; and most recently, by the St. Louis, Missouri RO. This case was before the Board of Veterans' Appeals (Board) in January 1994, when it was remanded for additional development. Among the actions requested by the Board was further development and consideration of a claim of service connection for schistosomiasis as intertwined with the previously developed claim of service connection for a urinary stricture. The veteran was advised of the action taken by the RO in an August 1994 supplemental statement of the case. The Board notes that, because the veteran served during a period of war, his claim for compensation benefits must be construed to include a claim for non-service-connected pension under 38 U.S.C.A. § 1521 (West 1991). See 38 U.S.C.A. §§ 101(11), (29), 1521(a) (West 1991); 38 C.F.R. § 3.151(a) (1993); Waddell v. Brown, 5 Vet.App. 454 (1993). Since a claim for pension under § 1521 has not yet been addressed, this issue is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he was injured during military service when he was hit in the side by a sandbag. He asserts that the injury led to the development of a urinary stricture. In the alternative, he claims that he acquired a Schistosoma infection while serving in Vietnam and that this parasitic infection led to problems with urinary stricture. 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. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that claims of service connection for a urinary stricture and schistosomiasis are not well- grounded. FINDINGS OF FACT 1. No cognizable evidence has been presented linking a urinary stricture to the veteran's period of military service or any event coincident therewith, such as a Schistosoma infection. 2. No cognizable evidence has been presented to show that the veteran has schistosomiasis or residuals of treatment therefor. CONCLUSIONS OF LAW 1. The claim for service connection for a urinary stricture is not well-grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. The claim for service connection for schistosomiasis is not well-grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered is whether the veteran has presented well-grounded claims. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A well-grounded claim is defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Section 5107 provides that the claimant's submission of a well-grounded claim gives rise to VA's duty to assist and to adjudicate the claim. In short, VA is not required to adjudicate a claim until after the veteran has met this initial burden of submitting a well-grounded one. "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well-grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which shows that the claimant has the alleged disability and that it is attributable to a period of military service or to an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well-grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well- grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). In the veteran's case, no competent evidence has been presented to link his urinary stricture or the claimed schistosomiasis to military service. His service medical records do not show he had either problem. He has testified that he believes that an injury sustained during service led to his developing a urinary stricture. While he is certainly competent to testify about circumstances surrounding injuries or accidents that occurred during service, he has not demonstrated that he has the medical expertise necessary to make a diagnosis or provide competent evidence of medical causation. VA records dated in August 1990 and in April 1992 refer to his having a urethral stricture as early as 1984. Reports submitted by John T. Walker, M.D., show that the veteran was followed as early as 1986 for problems with urinary frequency that began one year earlier. However, none of these records relates the subsequently confirmed urinary stricture to the veteran's period of military service or an event coincident therewith. Absent the presentation of some medical evidence linking the stricture to military service, the claim may not be considered well- grounded. See Grottveit v. Brown, 5 Vet.App. 91; Montgomery v. Brown, 4 Vet.App. 343 (1993). A September 19, 1990, VA record refers to a problem with right hydroureter "possibly 2 to Schistosomiasis." By its own characterization, this opinion is equivocal, even speculative. None of the evidence presented shows that the veteran has ever been diagnosed as having schistosomiasis. Speculation on the part of the examiner as to possible causes for the veteran's problems is not helpful. Indeed, speculative opinions of medical causation are so lacking that they are without probative value in adjudging whether a claim is well-grounded. See Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (a claim is not considered well-grounded when an examiner speculates that there "may or may not" be some medical connection); Harvey v. Principi, 3 Vet.App. 343, 345 (1992). The veteran has argued that schistosomiasis contracted as a result of exposure while serving in Vietnam is a plausible explanation for his urinary tract difficulties. However, he has not submitted evidence showing that he now has or ever had the parasitic infection. Absent the presentation of such evidence, his claim may not be considered well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Even with the application of the presumption of service incurrence or aggravation found in 38 U.S.C.A. § 1112 (West 1991), a claim for service connection is not well-grounded unless the claimed disability is currently shown. Id. Absent a presentation of a well-grounded claim, the Board does not have jurisdiction to act. Boeck v. Brown, 6 Vet.App. 14 (1993). Therefore, the veteran's appeal must be dismissed. The RO is advised that decisions on the merits on this claim prior to and including this decision are to be regarded as dismissals, without finality as to the merits. See Grottveit v. Brown, 5 Vet.App. 91 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). As finality on the merits does not attach, there can be no prejudice to the veteran in dismissing the claim, even though the RO's decision was on the merits. Compare Bernard v. Brown, 4 Vet.App. 384 (1993). ORDER Claims of service connection for a urinary stricture and schistosomiasis are not well-grounded; therefore, the appeal is dismissed. M. CHEEK 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 which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.