BVA9502416 DOCKET NO. 93-07 147 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for cardiovascular disease as secondary to service-connected post-traumatic stress disorder. 2. Whether new and material evidence has been received to reopen a claim for service connection for hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Reichelderfer, Associate Counsel INTRODUCTION The veteran served on active duty from July 1953 to July 1957. This case arises from a rating decision of July 1992 from the North Little Rock, Arkansas, Regional Office (RO). In the October 1993 Informal Hearing Presentation before the Board of Veterans' Appeals (Board), the veteran's representative alleged clear and unmistakable error in a prior rating decision. This issue is not inextricably intertwined with any issue on appeal, and has not been developed for appellate review. As such, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it denied service connection for cardiovascular disease and when it found that new and material evidence had not been received to reopen his claim for service connection for hearing loss disability. He specifically alleges that his service-connected post-traumatic stress disorder has caused his cardiovascular disease. He also claims that his hearing loss is the result of an explosion during 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 it is without jurisdiction as to the issue of service connection for cardiovascular disease as secondary to post- traumatic stress disorder, and the veteran's claim is therefore dismissed. It is also the decision of the Board that no new and material evidence has been received to reopen his claim for service connection for hearing loss disability. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's hearing loss claim has been developed. 2. The evidence of record is insufficient to establish a plausible basis for finding that the veteran's cardiovascular disease was caused by the service-connected post-traumatic stress disorder. 3. In a decision by the Board, dated in April 1987, service connection for bilateral defective hearing was denied. 4. The evidence received subsequent to the April 1987 Board decision, when reviewed in conjunction with evidence that was previously considered, is not new and material in that it does not raise a reasonable possibility that the veteran's claim for service connection for hearing loss disability could be allowed. CONCLUSIONS OF LAW 1. The claim for service connection for cardiovascular disease as secondary to service-connected disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991) 2. The evidence received subsequent to the Board decision of April 1987, in which service connection for bilateral defective hearing was denied, is not new and material, and does not serve to reopen the veteran's claim for such a disability. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Entitlement to service connection for cardiovascular disease as secondary to service-connected post-traumatic stress disorder. The threshold question to be resolved is whether the veteran has presented evidence that his claim is well grounded, in that it is plausible. If he has not presented such evidence, his appeal fails as to that claim, and the Board is under no duty to assist in any further development of the claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, it is found that there is no evidence to establish a plausible basis for finding that cardiovascular disease is proximately caused by the service- connected disability of post-traumatic stress disorder. It must be accordingly found that the veteran's claim for service connection for cardiovascular disease is not well grounded, and the appeal must be dismissed since it does not present a question of fact or law over which the Board has jurisdiction. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.310(a) (1993). It necessarily follows that there must be evidence that provides a basis for finding that a service- connected disability is the proximate cause of the claimed disability. In the absence of such evidence, a claim for service connection is not plausible and accordingly not well grounded. 38 U.S.C.A § 5107(a) (West 1991). The United States Court of Veterans Appeals (Court) found that allegations without supporting medical evidence are not sufficient to find that a claim for service connection is well grounded. Bowers v. Derwinski, 2 Vet.App. 675, 677 (1992). A Department of Veterans Affairs Medical Center (VAMC) discharge summary indicates the veteran was hospitalized from September to October 1985 with an initial diagnosis of hypertension, and in March 1990 with a primary diagnosis of coronary artery disease, status post myocardial infarction. The summary also notes as a fifth co-morbidity and complication post-traumatic stress disorder. It was indicated that the veteran's risk factors on admission included history of cigarette smoking, sedentary lifestyle, obesity, high cholesterol, and hypertension. PTSD as a causal factor was not reported. The report of a Department of Veterans Affairs (VA) examination, dated in June 1992, notes a diagnosis of arteriosclerotic heart disease, coronary arteriosclerosis, anginal syndrome, compensated, Class II B. The report also includes the examiner's medical opinion that the arteriosclerotic heart disease is not caused by post-traumatic stress disorder, but, that situations of stress can aggravate symptoms of the nonservice-connected arteriosclerotic heart disease. The report further states that the cause of the disease is blockage of the coronary artery. While it is noted that the veteran is service connected for post- traumatic stress disorder, and the evidence shows that he now suffers from a cardiovascular disease, the evidence does not demonstrate that his post-traumatic stress disorder is the proximate cause of his cardiovascular disease. More specifically, the evidence, in the form of the June 1992 VA examination report, specifically points out that his cardiovascular disease is not caused by post-traumatic stress disorder but rather is the result of coronary artery blockage. Accordingly, there is no evidence to support the veteran's contention that his post-traumatic stress disorder is the proximate cause of his cardiovascular disease. 38 C.F.R. § 3.310(a) (1993). The Board notes that the VA examination report indicates that symptoms of arteriosclerotic heart disease can be aggravated by situations of stress. However, the United States Court of Veterans Appeals, in the case of Leopoldo v. Brown, 4 Vet.App. 216, 218 (1993), has held that service connection cannot be established for a disability that is aggravated by, but is not proximately caused by a service- connected disability. In the current case, the evidence does not provide a plausible basis for finding that the veteran's current cardiovascular disease is caused by his service-connected post-traumatic stress disorder. It therefore follows that since the record contains no plausible basis for finding that cardiovascular disease is caused by post-traumatic stress disorder, service connection cannot be granted. The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial person that service connection for cardiovascular disease could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991). The Board must therefore conclude that the claim for service connection for such a disability is not well grounded. The Court has held that claims that are not well grounded must be dismissed by the Board. The Court has stated that [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); see Tirpak v. Derwinski, 2 Vet.App 609, 610-11 (1992). If a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate the claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In other words, the Court has held that, if a claim is not well grounded, the Board does not have jurisdiction over the question of whether the benefit sought on appeal is warranted. Boeck, 6 Vet.App. at 17. Since a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, an appeal from a claim that is not well grounded must be dismissed. 38 U.S.C.A. 7105(d)(5) (West 1991). In this case, it has been previously noted that the evidence does not provide a plausible basis for finding that cardiovascular disease is proximately caused by post traumatic stress disorder. The claim is not considered plausible, and is therefore not well grounded. Accordingly, pursuant to judicial interpretation of applicable statutory and regulatory provisions, the veteran's appeal for service connection for cardiovascular disease is dismissed. 38 U.S.C.A. § 7105(d) (West 1991). II. Whether new and material evidence has been received to reopen a claim for service connection for hearing loss. The well-groundedness requirement does not apply with regard to reopening disallowed claims and revising prior final determinations. See Jones v. Brown, No. 93-315 (U.S. Vet.App. Nov. 14, 1994). In a decision dated in April 1987, the Board denied service connection for bilateral defective hearing. In making that decision, the Board considered the service medical records which show that the veteran was injured in an explosion during service, however, hearing loss was not shown. The Board also considered post service medical records that did not indicate hearing loss disability until many years after service. Prior decisions of the Board are final, but they may be reopened upon the receipt of additional evidence, which is both new and material. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). "New" evidence means more than evidence that has not previously been associated with the claims folder. The "new" evidence must present information not previously considered, and therefore may not be cumulative of the evidence already of record. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition, the evidence, even if new, must also be material, in that it is relevant and probative; that is, it raises a reasonable possibility of allowance of the claim when viewed in conjunction with the record as a whole. The evidence received subsequent to the Board's April 1987 decision includes VA audiological consultation and examination reports. The VA audiology consultation report, dated in December 1991, indicates that the veteran was issued two hearing aids and is receiving significant benefit from them. The report of a VA audiology examination, dated in June 1992, shows that he currently has hearing loss disability. See 59 Fed.Reg. 60,560 (1994) (to be codified at 38 C.F.R. § 3.385). This evidence is new since it presents information that was not considered for the Board's 1987 decision. However, it does not provide any basis to show that his current hearing loss disability was incurred in or aggravated by service. This evidence merely shows the presence of current hearing loss problems, many years after service. When considered with the entire evidentiary record, the evidence that has been received is merely cumulative of that previously considered, and is not sufficient to provide a reasonable possibility that the claim could now be allowed. Accordingly, the Board finds, pursuant to Colvin, that this evidence is new but not material, since it is not probative of the issue of service connection for hearing loss, and cannot serve to reopen his claim. In view of the foregoing, the Board concludes that new and material evidence has not been received with regard to the veteran's claim for service connection for hearing loss disability, and his claim has not been reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. § 3.156(a) (1993). ORDER The appeal based on a claim for service connection for cardiovascular disease as secondary to post-traumatic stress disorder is dismissed. New and material evidence has not been received with regard to the question of service connection for hearing loss, the claim has not been reopened, and the benefit sought remains denied. U. R. POWELL 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.