BVA9502376 DOCKET NO. 93-09 196 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a brain tumor. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas C. Taylor, Associate Counsel INTRODUCTION Appellant served on active duty from December 1965 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for a brain tumor. All issues raised by the appellant must be developed. EF v. Derwinski, 1 Vet.App. 324 (1991). The veteran's representative in December 1993 first raised the issue of entitlement to service connection for residuals of a right knee injury. This issue has not been adjudicated or developed for appellate review and is therefore referred to the RO at this time for initial consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his brain tumor is the "result of shrapnel that hit me on the back and tossed me about 150 feet into the air & landed on my head" in July 1968, while serving in Vietnam. 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 the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for a brain tumor is well-grounded. FINDING OF FACT The veteran has submitted no competent evidence that his brain tumor, first evident more than a decade post service, was caused by any trauma to the head of service origin. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to service connection for a brain tumor. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question in all cases is whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). Boeck v. Brown, 6 Vet.App. 14, 17 (1990). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Foremost, there must be evidence of a current disability. Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Brammer v. Derwinski, 3 Vet.App. 223 (1992). Furthermore, there must be more than a mere allegation; the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well-grounded claim. Cartright v. Derwinski, 2 Vet.App 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). Moreover, such medical evidence must be more than speculative. Tirpak, at 611 (term "may or may not" renders opinion speculative). Any adjudication on the merits of a claim which is not well-grounded would constitute error. Grivois v. Brown, 6 Vet.App. 136 (1994). The Board is barred from consideration of the merits of this claim as the veteran has presented no competent, supportive evidence linking his brain tumor with service. The veteran may competently testify to head trauma during his service. The determinative issue in this case, however, rests upon medical causation, namely the claimed causal relationship between the alleged in-service head trauma and a brain tumor. Although the record includes a VA medical examination report, dated in October 1992, it does not contain any medical evidence or opinion suggesting any probable causal nexus between veteran's brain tumor (apparently an astrocytoma) and his claim that he sustained head trauma following shrapnel injury. The recent VA examination merely contains another recitation of his version of the medical history, but such history (as related by the veteran) stands in marked contrast with the actual service medical records which evidence no shrapnel wound sustained in Vietnam or resultant head trauma. In this regard, it is observed that the VA is not required to accept every bald assertion made by a veteran as to service incurrence or aggravation of a disability. See Wood v. Derwinski, 1 Vet.App. 190 (1991). When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice to respond, and if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of his failure to meet his initial burden in the adjudication process, we conclude that he has not been prejudiced by this decision. We point out to the appellant that by dismissing his claim, he is not burdened with a prior final adjudication on the merits. Thus, if he is able to submit a well-grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). ORDER The claim for service connection for a brain tumor is dismissed. J. F. GOUGH 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.