BVA9504119 DOCKET NO. 93-13 049 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for disability manifested by swallowing difficulty (dysphagia). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from June 1952 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran has a disability manifested by swallowing difficulty which is the result of the surgical removal of a tumor during his active service. It is asserted that the veteran has been told that his swallowing difficulty is the result of unrepairable nerve damage. 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 veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. FINDING OF FACT The claim for service connection for disability manifested by swallowing difficulty (dysphagia) is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for disability manifested by swallowing difficulty (dysphagia) is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered with respect to this issue is whether the veteran has presented evidence of a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of that claim because such additional development would be futile. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that his claim is not well grounded. Service medical records reflect that, in June 1955, the veteran underwent excision of a benign mixed tumor of the right submaxillary gland. The operation report reflects that the mass was freed using sharp and blunt dissection. The facial vein was ligated and severed. The mass occupied the posterior two-thirds of the submaxillary-salivary gland. The gland was followed anteriorly and the duct ligated and severed. The hypoglossal nerve and the lingual nerve were identified and were not severed. The chorda tympana was severed where it entered the gland. The regional lymph nodes in the area were not removed, but appeared and felt normal. A November 1989 letter from a VA physician states that the report of the veteran's VA ionizing radiation examination indicates that the veteran had "residuals, surgical removal of a benign growth of the right posterior jaw and neck with weakness of the right lower facial muscles (the masseter muscle and depressor anguli oris) with difficulty swallowing." The report of an August 1991 special VA otolaryngology examination states that a pharyngoesophagram and video swallow study were normal and there was no evidence of any swallowing dysfunction, despite a reported 10 year history of complaints of dysphagia. VA outpatient treatment records, dated in April and May 1992, indicate that the veteran continued to have complaints of swallowing difficulty, but a pathologic basis for the swallowing difficulty was not identified nor any disability diagnosed which caused that difficulty. While the veteran has indicated that he believes that he has a current disability which is manifested by swallowing difficulty, the clinical evidence of record does not identify any such disability. It is contended that the veteran's swallowing difficulty is residual to surgery performed on him during active service. While a November 1989 letter indicates that the veteran had weakness of the right lower facial muscles with difficulty swallowing, it does not identify any separate disability which causes the difficulty swallowing, and the report of the August 1991 special VA otolaryngology examination reflects that there was no evidence of swallowing dysfunction. The only evidence that the veteran has a separate disability manifested by swallowing are lay statements. In Espiritu v. Derwinski, 2 Vet.App. 492 (1992), the United States Court of Veterans Appeals held that lay persons were not competent to make medical diagnoses. Causative factors of a disease is a medical question and only a physician's opinion would be competent evidence. Grottveit v. Brown, 5 Vet.App. 91 (1993). As the veteran has failed to submit medical evidence showing a currently identified disability which manifests itself as swallowing difficulty and has a relationship with his active service or service connected disability, a claim for service connection for disability manifested by swallowing difficulty is not well grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). Since he has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, there is no further duty to assist him in the development of that claim. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Since the claim is not well grounded, the Board does not have jurisdiction to adjudicate it and it must, accordingly, be dismissed. Grottveit; Boeck v. Brown, 6 Vet.App. 14 (1993). Should a disability be subsequently identified which is responsible for causing the veteran's swallowing difficulty, this dismissal will not prejudice the veteran in filing a new claim for service connection for the newly identified disability. ORDER The issue for service connection for a disability manifested by swallowing difficulty (dysphagia) is dismissed. JEFF MARTIN 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.