BVA9500888 DOCKET NO. 93-08 045 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a stomach condition. 2. Entitlement to service connection for a foot/leg condition. ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The appellant had active duty for training from July 1979 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision of the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO) which denied entitlement to the benefits sought on appeal. In conjunction with the instant appeal, the appellant was scheduled for a requested hearing in March 1993. However, when the appellant appeared on that date, he reported that he did not have anything to add to his claim, but wished to have the basis for the RO's denial of his claims explained to him. In light of the appellant's avowed lack of further evidence to offer, no hearing was held and the Acting Hearing Officer instead responded to the appellant's inquiry. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he has submitted new and material evidence sufficient to reopen a claim for service connection for a stomach condition. He essentially maintains that he incurred a foot/leg condition in service. 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 new and material evidence sufficient to reopen a claim for service connection for a stomach condition has not been submitted, and the appellant has not submitted a well-grounded claim for service connection for a foot/leg condition. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The appellant was denied service connection for gastrointestinal disability by Board decision of January 1991. 3. Evidence received since the Board's January 1991 adverse decision, consisting of statements submitted by the appellant, and service, VA and private medical records, includes evidence that is duplicative, immaterial, and does not establish a reasonable possibility of a change in the outcome of the decision. 4. A foot/leg condition has not been shown to be causally or etiologically related to the appellant's service by credible medical evidence or opinion. CONCLUSIONS OF LAW 1. The Board's January 1991 decision denying service connection for gastrointestinal disability is final. 38 U.S.C.A. §§ 5108, 7103(a) (West 1991); 38 C.F.R. § 20.1100 (1993). 2. New and material evidence sufficient to reopen the appellant's claim has not been presented. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 3. The appellant has not submitted a well-grounded claim to establish entitlement to service connection for a foot/leg condition. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Stomach condition The appellant was denied service connection for gastrointestinal disability by Board decision of January 1991. Evidence considered at that time included service, VA and private medical records, and statements offered by the appellant in support of his appeal, including testimony provided at a hearing in March 1989. The Board determined that the appellant's stomach disability had not been incurred or aggravated during his period of active duty for training. The applicable criteria provide that when a claim is disallowed by the Board, it may not thereafter be reopened and allowed absent a determination by the Chairman that reconsideration is warranted, and no claim based upon the same factual basis shall be considered. 38 U.S.C.A. § 7103. In order to reopen his claim, it is incumbent upon the appellant to submit new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Thereafter, 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). Furthermore: 'New' evidence is that which is not merely cumulative of other evidence of record. 'Material' evidence is that which is relevant to and probative of the issue at hand and which...must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence received subsequent to the Board's 1991 decision, and in support of the instant appeal, includes various private and VA medical records evidencing treatment and evaluation for various conditions, including microcytic anemia, thrombocytosis, hemoglobin AC disease and peripheral neuropathy. Among the documents submitted are six duplicate pages of service medical records reflecting treatment accorded the appellant from July to December 1979, which clearly do not represent new evidence. The appellant has offered only a vague allegation in his substantive appeal of September 1992 that the RO failed to review his medical records. There is no support for this representation as rating decisions and associated statements of the case reveal a thorough evaluation of the evidence obtained in relation to the instant appeal. The noted nonduplicative medical records are not material to, or probative of, the issue before the Board, i.e., whether the appellant incurred or aggravated a stomach condition in service. Rather, they merely serve to demonstrate the current presence of disabilities, and fail to link any current disability to an incident of the appellant's active service. By implication, the appellant has averred that he incurred or aggravated a stomach condition in service. However, the appellant is not competent to offer an opinion that requires medical knowledge, such as the diagnosis of a stomach condition or an opinion regarding the causation of such a disorder. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992); see also Mintz v. Brown, No. 92-1161, slip op. at 6 (U.S. Vet.App. Mar. 8, 1994). In addition, such evidence in and of itself would be insufficient to serve as a basis to reopen a claim under 38 U.S.C.A. § 5108. See Moray v. Brown, 5 Vet.App. 211, 214 (1993). Therefore, the appellant has not submitted new and material evidence to reopen the previously denied claim for service connection for a stomach condition, and the Board's January 1991 decision remains final. II. Foot/leg condition The appellant has essentially represented that he incurred or aggravated a foot/leg condition in service. In support of this averment, the appellant has submitted service, VA and private medical records evidencing treatment for various conditions. The initial inquiry in reviewing any claim before the Board is whether the appellant has presented evidence of a well-grounded claim; that is, one that is plausible or capable of substantiation. The appellant carries the burden of submitting evidence "sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If he has not presented a well-grounded claim, his appeal must fail and be dismissed as the Board does not have jurisdiction to adjudicate that claim. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993); Grivois v. Brown, 6 Vet.App. 136, 140 (1994). The Board finds and concludes that the appellant's claim is not well- grounded. Accordingly, the appellant's claim must be dismissed. 38 U.S.C.A. § 7105(d)(5). A review of the appellant's service medical records reveals several health record entries from August 1979 wherein the appellant initially presented with complaints of having corns on both feet for two weeks. He was later referred to a podiatrist, who gave him a pad for numbness. The appellant presented for treatment in November 1979, complaining of pain in his right foot. A hard corn on his fifth toe was debrided. Later that month, the appellant complained of experiencing numbness in his feet while standing, reporting that he had experienced poor circulation and a sensation of his feet heating up for five months. Problems with corns were also reported. On physical examination his pulses were palpable, with motor abilities intact and his hair pattern was without aberration. The appellant was advised on corn care. In December 1979, the appellant reported vague complaints in his legs and feet, which he indicated had begun in basic training. The examiner observed the appellant to have mild flat feet, but was otherwise normal below the knees. It was felt that the appellant should get along with mild limitation of standing and walking. He was granted a profile for two months for leg and foot pain. The appellant's period of active duty for training concluded in January 1980. In March 1982, the appellant underwent a physical examination for purposes of attending school. No abnormalities of his feet or lower extremities were noted. In completing an associated report of medical history, the appellant reported that he was in good health, and that he did not then have, or ever had, swollen or painful joints, cramps in his legs, arthritis, bursitis or rheumatism, bone, joint or other deformity, lameness, or foot trouble. He indicated that he had never had any illness or injury other than a hernia operation or had been rejected for military service because of physical reasons. The next available medical record documents private treatment received by the appellant for pericarditis in October 1984. Although various physical complaints were noted, no mention was made of any foot or leg problems. A narrative summary of November 1987 reflects that the appellant was diagnosed with iron deficiency anemia, hemoglobin AC disease, polyclonal gammopathy and weight loss. The appellant's medical history was reported to be unremarkable. A report of evaluation for anemia recorded that the appellant had complained of back pain that was not associated with sensorimotor changes in his legs. On physical examination, no abnormalities of the appellant's joints or extremities was revealed, and neurological examination was similarly negative. A narrative summary of May 1988 noted the appellant had complained of left knee pain, which was related to oligoarthritis. VA treatment records document that the appellant presented in February 1989, complaining of pain in both lower legs, which he stated had been present since 1979. He later received treatment for anemia, and was diagnosed with mild peripheral neuropathy of both legs. In March 1990, the appellant sought treatment from Calvin L. Reid, M.D., for complaints of a sudden onset of severe right knee pain. Although the appellant received treatment from Dr. Reid on several occasions subsequently, no further complaints regarding his feet or legs were made. Records reflecting treatment received from Jeffrey J. Crittenden, M.D., of June 1991 document that the appellant had reported having chronic leg pain which was allegedly due to injury incurred during his attendance at jump school while in service. There is no evidence that the appellant suffered from a chronic foot and/or leg condition while in service. The appellant sought, and received, treatment in service for foot complaints which were mainly associated with corns. After presenting on a sole occasion during active duty for training complaining of vague undiagnosed foot and leg problems, it was not until over eight years later that any further leg complaints were offered. Although the appellant reported that he had experienced problems with his feet during service that were due to breaking in new boots and strenuous exercise at a March 1989 hearing, he later related his complaints to jump school to another examiner. While in recent years the appellant has represented to physicians that he has suffered from foot and leg complaints since service, objective clinical records fail to corroborate this averment. The appellant himself reported a medical history in 1982 denying any foot or leg problems. It was not until years after service that the appellant reported having any leg problems, despite having received treatment for various complaints on numerous occasions prior to that time. In addition, the appellant's post- separation foot and leg complaints have been associated with different conditions, with no examiner correlating his complaints with his service. The only suggestion of any causal or etiological relationship with the appellant's foot and leg complaints and his service is the appellant's own averments of the same offered to examiners and in support of the instant appeal. However, the appellant is not competent to provide credible evidence regarding the diagnosis of a foot and/or leg condition, or an opinion regarding a causal or etiological relationship regarding a medical matter. See Espiritu. In addition, the United States Court of Veterans Appeals has held that where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Magana v. Brown, No. 93- 556, slip op. at 5-6 (U.S. Vet.App. Dec. 14, 1994). As the appellant is a lay person, he is unable to provide competent medical evidence linking any current foot/leg condition that he may suffer from with his military service. Therefore, he has not submitted a claim that is plausible and, as such, his claim is not well-grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Accordingly, the claim must be dismissed. See 38 U.S.C.A. § 7105(d)(5). ORDER New and material evidence not having been submitted to reopen a claim for service connection for a stomach condition, the benefit sought on appeal is denied. A well-grounded claim not having been submitted to establish entitlement to service connection for a foot/leg condition, the appeal is dismissed. WARREN W. RICE, 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.