BVA9505809 DOCKET NO. 92-14 374 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for postoperative residuals of a right herniorrhaphy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD E. A. Artman, Associate Counsel INTRODUCTION The veteran served on active duty from November 1942 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a January 1991 rating decision of the Boston, Massachusetts, Regional Office (RO). This decision denied a request to reopen a claim of service connection for postoperative residuals of a right herniorrhaphy, on the basis that new and material evidence sufficient to reopen the claim had not been submitted to the adjudicative agency. The veteran expressed his disagreement with this decision in a timely manner. The issue of whether new and material evidence had been submitted came before the Board in May 1993. At that time, it was determined that evidence had been received sufficient to reopen the claim of service connection, but that additional development of the evidence was mandated before a de novo review of this claim could take place. This development has now been essentially completed. CONTENTIONS OF APPELLANT ON APPEAL At a May 1992 hearing before a hearing officer and in his substantive appeal, the veteran contended that he had experienced pain in the right inguinal area since receiving inservice surgical treatment for a left hernia. He further contended that, as a consequence, postoperative residuals of his right herniorrhaphy should be service-connected, as were his residuals from the left herniorrhaphy. 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 evidence has not been submitted sufficient to justify a belief by a fair and impartial individual that the veteran's claim of service connection for postoperative residuals of a right herniorrhaphy is well grounded. FINDING OF FACT No competent evidence has been submitted which demonstrates that the veteran's postoperative residuals of a right herniorrhaphy are the result of his active military service; evidence has not been received which marks the onset of his right inguinal hernia as occurring during service or which attributes the development of this hernia to the existence of his left inguinal hernia and/or postoperative residuals of a left herniorrhaphy. CONCLUSION OF LAW A well-grounded claim of service connection for postoperative residuals of a right herniorrhaphy has not been submitted. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.301, 3.310 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION In Grottveit v. Brown, 5 Vet.App. 91 (1993), the United States Court of Veterans' Appeals (Court) discussed the threshold consideration of a claim submitted for VA benefits, that of whether or not the submitted claim was well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). In doing so, the Court found that: ...the claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded in order for the RO to carry the claim to full adjudication. 38 U.S.C.A. § 5107(a) (West 1991). "[T]he [VA] benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Our determination whether a claim is well grounded is a matter of law. King v. Brown, 5 Vet.App. 19, 21 (1993). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under section 5107(a). (Citation omitted.) 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. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak, 2 Vet.App. at 611. If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. (Citation omitted). Grottveit at 92-93. In the present case, the veteran has filed a claim of service connection for postoperative residuals of a right herniorrhaphy. In order for this claim to be established, the evidence must demonstrate either that the onset of the veteran's right inguinal hernia may be traced back to his period of service, or that its onset is attributable to his service-connected left inguinal hernia and/or postoperative residuals of two left herniorrhaphies. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.301, 3.310 (1993). Thus, the determinative issues at hand are those concerning medical diagnosis or causation. In accordance with Grottveit, these are issues which can only be adjudicated by the Board upon receipt of requisite medical evidence. We do not find that such evidence has been received in the case before us. Two statements have been received from the veteran's private physician, Frank P. Calamita, Jr., M.D., dated December 17, 1990 and September 10, 1993. The December 1990 statement made reference to a "recurrent hernia disease", the onset of which Dr. Calamita did date back to the time of the veteran's military service. Letter from Frank P. Calamita, Jr., M.D. (Dec. 17, 1990). However, when Dr. Calamita was asked to clarify his December 1990 statement, pursuant to remand action requested by the Board, he responded in September 1993 by stating that his office notes documented that the veteran had had a left inguinal repair performed as a result of his service; that a subsequent recurrence of this hernia had been repaired following service; and that his December 1990 comments pertained solely to the left inguinal hernia. Dr. Calamita offered no comment as to whether he felt the veteran's left hernia or its postoperative residuals had led to the onset of the right hernia. Also pursuant to action requested in the Board's May 1993 remand, the veteran was examined by a VA physician. In our remand, we requested that such an examination be completed in order to ascertain whether the veteran's right inguinal hernia could, in any way, have been causally or etiologically related to his left hernia. Results of two VA examinations, performed in November 1993 and in June 1994, failed to provide a response to this consideration. The reports of these examinations merely provided diagnoses reflective of the then-current status of the veteran's hernias. However, at a third VA examination, performed in August 1994, it was noted that the veteran stated unequivocally, when asked, that he did not experience discomfort or a hernia in the right groin while he was in the service. It was further noted that slight evidence of a right inguinal defect may have been present in 1981, but that no defect was known prior to that time. Based on these findings, the examiner stated that it was his unequivocal opinion that the veteran's then-present right groin discomfort was unrelated to events of the veteran's active service. Given this conclusion and the September 1993 statement by Dr. Calamita, the Board can only find that the veteran has failed to present a well-grounded claim of service connection for his residuals of a right hernia. As it currently stands, the medical evidence cannot be said to support the veteran's assertions that he initially experienced problems in the right inguinal area immediately following inservice treatment of his left hernia. See VA Form 1-9, Appeal to Board of Veterans' Appeals 1 (received by the RO, Mar. 30, 1992); Transcript of hearing conducted by a hearing officer 1-2 (May 13, 1992). Indeed, the results of the August 1994 VA examination offer a contradiction to this assertion, by way of information supplied by the veteran himself. Furthermore, while Dr. Calamita's December 1990 statement may have suggested a basis for a grant of secondary service connection, his remarks of September 1993 serve to nullify any such suggestion. Therefore, medical evidence has not been submitted such as would present a plausible basis for a grant of either direct or secondary service connection. As a result, the veteran's appeal is dismissed, without invocation of a duty to assist on the part of VA. (In so noting that no duty to assist has arisen on the part of VA, the Board further notes that its May 1993 finding that new and material evidence had been submitted sufficient to reopen the veteran's claim of service connection, was made prior to the Court's issuance of Moray v. Brown, 5 Vet.App. 211 (1993) (new and material evidence is, by its nature, well-grounded).) ORDER The veteran's appeal is dismissed; a well-grounded claim of service connection for postoperative residuals of a right herniorrhaphy has not been submitted. BARBARA B. COPELAND 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.