Citation Nr: 0006182 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-15 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for cardiovascular diseased, including hypertension. 3. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from February 1953 to July 1956. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the benefits sought on appeal. FINDINGS OF FACT 1. Competent medical evidence has not been submitted of a nexus or relationship between any currently diagnosed sinusitis and the veteran's service. 2. Competent medical evidence has not been submitted of a nexus or relationship between any currently diagnosed diabetes mellitus and the veteran's service. 3. Competent medical evidence has not been submitted of a nexus or relationship between any currently diagnosed cardiovascular disease, including hypertension, and the veteran's service. CONCLUSION OF LAW The claims of service connection for sinusitis, diabetes mellitus and cardiovascular disease, to include hypertension, are not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Sinusitis The Board notes that a claim of entitlement to service connection for sinusitis was denied by an unappealed rating determination of December 1960. Inasmuch as the veteran did not perfect a timely appeal, the RO's decision is final. 38 U.S.C.A. § 7105. Pursuant to 38 U.S.C.A. § 5108 the veteran's claim may be reopened if new and material evidence has been presented. New evidence submitted to reopen a claim will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must review all evidence submitted since the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). If the Board's decision is favorable to the veteran, his claim must be reopened and decided on the merits. See Glynn v. Brown, 6 Vet. App. 523, 528-29 (1994). The U.S. Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), considered evidence material when it was probative of the issue at hand and there was a reasonable possibility of a change in outcome when viewed in light of all the evidence of record. The Federal Circuit reasoned that the regulation on point, 38 C.F.R. § 3.156(a), merely requires that the newly submitted evidence "be so significant that it must be considered in order to fairly decide the merits of the claim." In light of the recent ruling in Hodge, the United States Court of Appeals for Veterans Claims (hereinafter, "Court") concluded that "Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. Fossie v. West, 12 Vet. App. 1 (1998). The evidence that was of record at the time of the prior denial included service medical records, which document that the veteran was treated for acute sinusitis once in August 1953. In April 1954, he was treated for bronchopneumonia. His sinuses were reported as entirely normal on his separation examination in April 1956. The veteran's sinuses were also reported as normal on a November 1960 VA examination. In the absence of a diagnosed condition, the claim was denied. At a January 1997 VA examination, the veteran complained of chronic sinusitis for the previous 15 years. X-rays revealed chronic sinusitis. Diagnosis was chronic deviated nasal septum, and the veteran was referred for a possible septoplasty operation. The veteran has stated that his chronic sinusitis condition has existed since service, and he treated the condition with over the counter medication. However, the law provides that, with respect to questions involving diagnosis or medical causation, credible medical evidence is required. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Thus, the veteran's statements do not serve his claim in a meaningful way, see Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992) (holding that laypersons are not competent to offer medical opinions), nor do they provide a sufficient basis for reopening the previously disallowed claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1995) (holding that where resolution of an issue turns on a medical matter, lay evidence, even if considered "new," may not serve as a predicate to reopen a previously denied claim). The Board observes that medical evidence indicating the veteran has sinusitis, is new to the record, and in view of the less stringent standard for materiality set forth in Hodge, the Board finds that this new evidence bears directly and substantially on the question of whether the veteran incurred a chronic nasal condition in service. Accordingly, the veteran's claim for entitlement to service connection for sinusitis is reopened. Having reopened the veteran's claim for entitlement to service connection, the Board observes that the next step following the reopening of the veteran's claim is consideration of whether, based upon all of the evidence of record, a well-grounded claim has been submitted pursuant to 38 U.S.C.A. § 5107(a). Elkins v. West, 12 Vet. App. 209 (1999) (en banc). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). For example, if hypertension is manifested to a degree of 10 percent within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). If a condition noted during service is not shown to be chronic, then generally a continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded. See 38 U.S.C.A. § 5107(a) (West 1991). The Court has defined "well-grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Such a claim need not be conclusive, but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Id. A claim must be more than just an allegation; a claimant must submit supporting evidence. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate the claim. See Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. See Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, the VA does not have a duty to assist the veteran further in the development of the claim. See 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. A well-grounded claim for service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). It is significant that no medical professional has associated the veteran's sinusitis with service. The Board additionally observes that the veteran's sinusitis was specifically characterized as "acute", rather than chronic, in at least one service medical record. Moreover, the veteran's discharge examination as well as a VA examination some 4 years after service failed to diagnose the veteran with chronic sinusitis or any related active pathology. The Board additionally observes that although the January 1997 VA examination identified sinusitis as a current condition, it has not be linked with the symptomatology the veteran has mentioned over the years following service. Because the veteran has failed to provide medical evidence of a nexus between the claimed disorder and any incident in service or with the symptomatology after service, the veteran's service, the veteran's claim must be denied as not well-grounded. Cardiovascular Disease and Diabetes Mellitus Service medical records are silent as to complaints, treatment or diagnoses relating to cardiovascular disease, including hypertension, or diabetes mellitus. A VA examination afforded in November 1960 specifically reported the veteran's cardiovascular system as normal. His blood pressure was 140/86 in November 1960. The examination report also stated that the veteran did not receive any medical attention in the more than four intervening years since his discharge from service. Diabetes mellitus was not reported. The veteran has acknowledged that he did not receive treatment for the claimed conditions in service. However, he has advanced a theory that the disabilities resulted from treatment received for acute conditions during service, e.g. sinusitis. However, no medical evidence has been submitted in support of such contentions. The Board additionally observes that several VA examinations and special reports have declined to endorse any association between the claimed disorders and service. For example, in a February 1997 a VA physician who had examined the veteran reported that he had reviewed the service medical records and that there was no evidence to connect the veteran's heart disease and diabetes mellitus with the treatment of sinusitis in the service." Likewise, social security medical records fail to establish any association between the claimed disorders and service. A November 1990 private hospital record reports onset of hypertension in 1987 and diabetes in 1990; in 1987, he was admitted with episodes of syncope and was found to have atrial fibrillation. The evidence in support of the veteran's claim are principally his own statements that his claim is related to service. Even if the veteran's statements and testimony represent evidence of continuity of symptomatology, they are not competent evidence of a nexus between any current disorder and that symptomatology and, under such circumstances, do not make the claims well grounded. Savage, supra. Furthermore, the veteran is not competent to offer an opinion as to the etiology of the claimed disorders. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Hence, the veteran's statements do not make his claims well grounded. The Board finds that the veteran has failed to provide medical evidence of a nexus between the claimed disorders and any incident in service. As no competent medical evidence has been introduced into the record showing a link between the current claims and the veteran's service, the veteran's claims must be denied as not well-grounded. The Board is aware of no circumstances in this matter that would put VA on notice that relevant evidence may exist, or could be obtained, that, if true, would make this claim "plausible." See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete the application for a claim for service connection. ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for cardiovascular disease, including hypertension, is denied. BRUCE KANNEE Member, Board of Veterans' Appeals