BVA9502258 DOCKET NO. 93- 06 986 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a brain tumor. 2. Entitlement to service connection for amputation of the second and fourth toes of the right foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from September 1942 to January 1946. This appeal arises from a July 1992 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA), Regional Office (RO), which found that no new and material evidence had been submitted to reopen the veteran's claim for entitlement to service connection for a brain tumor. This decision was confirmed and continued by a rating action issued in December 1992. This decision also found that the toe amputations were due to poor circulation the result of diabetes not present in service, nor within one year of his discharge. It is noted that this case was previously before the RO on the issue of entitlement to service connection for a brain tumor in January 1987. This decision found that the service medical records did not indicate that the veteran's meningioma was present in service, nor did the subsequent records indicate that it had manifested to a compensable degree within one year of his discharge. Moreover, it was noted that no evidence had been submitted to establish a relationship between his 1943 truck accident and the development of a brain tumor in 1982. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he has submitted new and material evidence to reopen his claim for entitlement to service connection for a brain tumor. He asserts that a head injury he experienced in service resulted in the onset of a brain tumor. He also asserts that he has had poor circulation since service and that this resulted in the amputations of his toes in 1990. 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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims are well grounded. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a brain tumor in January 1987, with no timely appeal being taken therefrom. 2. Evidence submitted since that time does not show that the brain tumor was present in service, that it manifested to a compensable degree within one year following separation therefrom, or that it was related to his inservice head injury. 3. The evidence does not show that the right toe amputations are related to the veteran's period of service. CONCLUSION OF LAW The appellant has not submitted evidence of well grounded claims to reopen his previously denied claim for service connection for a brain tumor, or for service connection for right toe amputations. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a), 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.304, 3.307, 3.309, 20.302 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, claims which are plausible. If he has not presented well grounded claims, his appeals must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As will be explained below, it is found that his claims are not well grounded. We note that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Where a veteran served 90 days or more during a period of war and a brain tumor, or diabetes mellitus become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). I. Whether the veteran has submitted new and material evidence to justify reopening his claim for service connection for a brain tumor. The applicable criteria state that a notice of disagreement shall be filed within one year from the date of mailing of the notification of the initial review and determination; otherwise, that determination will become final and is not subject to revision on the same factual basis. The date of the notification will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302 (1993). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1993). In regard to his request to reopen his claim for entitlement to service connection for a brain tumor, it is noted that the evidence submitted prior to the January 1987 denial included the veteran's available service medical records. These did not indicate that he was treated for a head injury. The separation examination performed in January 1946 stated that he was neurologically normal. To support his contention that he suffered a head injury in service, the veteran submitted two statements, written in October 1986, one by his former commanding officer, the other by a service comrade, who stated that he had been in the truck with the veteran at the time of the accident. The former noted that the veteran had been injured in a truck accident in 1943 in Texas; the latter stated that the veteran had injured his head and knees. The veteran was hospitalized at a private facility between June and July 1982 after a frontal lobe mass was detected. An angiography confirmed the existence of a mass, which was consistent with meningioma. Surgery was performed to remove this mass. Post-operatively, he exhibited some confusion and marked frontal edema was noted. He was treated with steroids. A private examination conducted in July 1983 indicated that he was improving following the removal of the frontal lobe mass. While he displayed some mild frontal lobe characteristics, the fundoscopic examination was unremarkable. There was no recurrence of the mass. The evidence submitted after the 1987 denial included the report of a September 1990 VA hospitalization for the amputation of two toes on the veteran's right foot. This record indicated no treatment for his past brain tumor. The outpatient treatment records developed between January 1991 and January 1992 were also silent as to any references concerning his brain tumor. He also submitted additional records concerning the 1982 removal of the frontal lobe mass. These records provided additional detail as to the procedure done to remove the mass. After a review of the record, it is the conclusion of the undersigned that the veteran has not submitted a well grounded claim to reopen his request for service connection for a brain tumor. The evidence submitted prior to the 1987 denial showed that the veteran suffered a head injury in service, but experienced no residuals therefrom. The separation examination of January 1946 reflected that he was neurologically normal. There is no evidence between 1946 and the noted development in 1982 of a brain tumor of any complaints referable to his head injury. There was no evidence that this brain tumor developed within one year after his discharge. Finally, there was no objective evidence submitted of any relationship between this remote, acute head injury and the development of a brain tumor. In conclusion, the evidence which he submitted after the 1987 denial did not indicate that this brain tumor began in service or within one year following his separation. In fact, there was no reference to his being treated for any head injury residuals. Finally, no evidence was submitted that would tend to establish a relationship between the brain tumor and any inservice head injury. The United States Court of Veterans Appeals (Court) has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence or diagnosis of a current disorder that can be linked to the period of service. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); and Rabideau v. Derwinski, 2 Vet.App. 141 (1992). In the instant case, as noted above, there is no competent new and material medical evidence that the veteran's brain tumor began in service, manifested to a compensable degree within one year, or was related to any incident of service. Therefore, the undersigned concludes that the veteran's request to reopen this claim is not well grounded, and finds that this application to reopen the claim must be dismissed. II. Entitlement to service connection for amputation of the right second and fourth toes. A review of the evidence of record included the veteran's service medical records, which contained no suggestion of any problems with his toes, diabetes or peripheral vascular disease. The separation examination performed in January 1946 made no reference to the veteran's toes. VA outpatient treatment records developed between December 1985 and November 1986 did not show any treatment of any disability involving the right lower extremity; however, he was noted to be suffering from diabetes mellitus in February 1986. At that time, it was apparently controlled by his diet. In September 1990, he was hospitalized with complaints of pain in the second and fourth toes of the right foot, accompanied by a bluish discoloration. He was noted to have been hospitalized on two pervious occasions for the same complaints. The first hospitalization included an abdominal aortogram which showed an abdominal aortic aneurysm and obliteration of the left superficial femoral artery without reconstruction of the distal popliteal or branches. During the second hospitalization, a right lumbar sympathectomy was performed with marked improvement in the color of the right foot. The September 1990 hospitalization noted that the toes in question were gangrenous and required amputation. His blood sugar was noted to be elevated. Outpatient treatment records developed between January 1991 and January 1992 noted the veteran's slow recovery from the amputations. He also suffered from some diabetic ulceration following this surgery; however, the wound site and the ulcerations slowly closed by January 1992. Initially, it is noted that the law pertaining to direct service connection clearly requires that there must exist a disability that resulted from disease or injury incurred in service. 38 U.S.C.A. § 1110 (West 1991). While the evidence shows that the veteran currently suffers from diabetes and peripheral vascular disease that required amputation of two toes on the right foot, there is no evidence that this disability was present in service or within one year of separation therefrom. The earliest that diabetes can be found is in an outpatient treatment record from 1986. The Court has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence or diagnosis of a current disorder that can be linked to the period of service. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); and Rabideau v. Derwinski, 2 Vet.App. 141 (1992). In the instant case, as noted above, there is no competent medical evidence that the veteran's amputation of the right toes is any way related to a disorder that either began in service, or that was present to a compensable degree within one year after discharge. Therefore, as the appellant's claim for service connection for this disorder is not well grounded, it must be dismissed. To do otherwise and handle the case on the merits would be inappropriate because it would require the appellant in the future to overcome the inertia of an earlier, adversely adjudicated claim. See Grottveit, at 93. ORDER The appeal of the claims of service connection for amputation of the right second and fourth toes and the request to reopen the claim for service connection for a brain tumor are dismissed, and the rating decision of July 1992 is vacated. KENNETH R. ANDREWS, JR. 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.