BVA9504869 DOCKET NO. 93-12 163 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left side disability. 2. Entitlement to service connection for a cervical disability. 3. Whether new and material evidence sufficient to reopen a claim for service connection for a psychiatric disorder has been received. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from December 1942 to February 1946. In September 1982, service connection for a psychiatric disorder was denied. The veteran did not appeal that determination. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1991 rating decision from the Detroit, Michigan, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL It is contended that left side, cervical, and psychiatric disorders are of service origin. It is argued that the veteran's disorders are due to a vehicle accident. 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 psychiatric disorder has not been submitted; that the claim for service connection for a left side disorder is not well grounded; and that the preponderance of the evidence is against the claim for service connection for a cervical disability. FINDINGS OF FACT 1. Satisfactory evidence of a left side disorder has not been presented. 2. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 3. Cervical arthritis was not manifest during service or within one year of separation. 4. Cervical arthritis is not attributable to service. 5. Service connection for a psychiatric disorder was denied by rating decision dated in September 1982. The decision was supported by the evidence then of record. The veteran did not appeal within one year of date of notification of the decision. 6. The veteran has not submitted relevant evidence in regard to the petition to reopen the claim for service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The claim for service connection for a left side disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. Arthritis of the cervical spine was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 3. The September 1982 rating decision which denied service connection for a psychiatric disorder is final. New and material evidence sufficient to reopen a claim has not been presented. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Left Side Disorder The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim for service connection for a left side disorder. If he has not presented a well-grounded claim, the appeal must fail. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As we explain below, we find that the claim is not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). The claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded. The 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. 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. 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. A claimant would not meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Grottveit v. Brown, 5 Vet.App. 91 (1993). There is a fundamental basis for denying the claim. The appellant has not produced any evidence that would tend to show a presently existing left side disability. He apparently is of the belief that he is entitled to some sort of benefit simply because he may have had an injury while on active service. That, of course, is mistaken. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). The veteran has testified that he has a left side disability. However, the veteran is not competent to establish a medical diagnosis. Grottveit. In addition, the file lacks probative evidence attributing the claimed (unidentified) left side disability to the veteran's period of service. We conclude that the claim is not well grounded and that the appeal must be dismissed. If, in the future, the veteran is able to obtain competent evidence establishing the presence of a specific left side disability and evidence attributing the same to service, he should file a new claim. II. Cervical Disability The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. He has presented a claim that is plausible. We are satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. The veteran appealed the denial of service connection for a cervical spine disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110 (West 1991). If the disorder is arthritis, service connection may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). The veteran has testified that he was in a jeep accident during service and that he believes that the cervical problem is due to service. The veteran's is competent to establish that he was in a jeep accident. However, he is not competent to establish the etiology of the cervical arthritis. Grottveit. In support of the claim, the veteran submitted evidence of cervical arthritis, diagnosed in the 1980's, and a statement from B. E. Carl, M.D. Dr. Carl noted that the veteran had been a patient since May 1990. The veteran related a history of being in World War II, and that the neck had been injured when a jeep overturned. He did not require any surgery; however, "since that time he has had neck pain and dizziness." The doctor noted that a definitive cause could not be established but, "we feel that his symptoms certainly could be attributed to his injury during the war..." Based upon the veteran's testimony and the statement from the doctor, the Board concludes that the claim for service connection is well grounded. See 38 C.F.R. § 3.303(d). However, not all the evidence is positive. The service medial records were negative for findings of a cervical disability, and the separation examination was normal. Evidence of a cervical disability in proximity to separation from service has not been presented. In fact, a cervical disability was not medically identified until a 1981 private X-ray examination disclosed spurs. The statement of Dr. Carl, although establishing a well grounded claim, is of little probative value. The doctor, first examining the veteran in 1990, has no personal knowledge of the inservice events; therefore his opinion is based upon history as provided by the veteran. Furthermore, the reporting of inservice symptoms is inconsistent with appellant's discharge examination. Emperador v. Derwinski, 2 Vet.App. 343, 344 (1992). The doctor's statement is also of diminished probative value because he indicates that a cause for the veteran's complaints has not been established. Lastly, the reported history of cervical pain since the jeep accident is inconsistent with the separation examination and the veteran's testimony to the effect that his problems had started 20 years after service. When all the evidence is assembled, the Secretary, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The Board concludes that the preponderance of the evidence is against the claim for service connection. The service medical records are negative, there is an absence of evidence of a cervical disability in proximity to separation from service, a cervical disability was first manifest many years since separation from service, and the veteran testified that his problems did not begin until many years after service. Such evidence is more probative that a medical opinion based upon a refuted medical history and unsupported by personal knowledge of the examiner. Accordingly there is no doubt to be resolved and service connection is not warranted. III. Psychiatric Disorder In September 1982, the regional office addressed the issue of entitlement to service connection for a psychiatric disorder. At that time, the evidence consisted of the service medical records, which were silent for identification of a psychiatric disorder, an absence of evidence of a psychiatric disorder in proximity to separation from service, an absence of competent evidence attributing a psychiatric disorder to service, and an absence of competent (medical) evidence establishing the current existence or diagnosis of a chronic psychiatric disorder. Based upon the evidence then of record, the decision was supportable. The veteran was informed of the denial and of his right to appeal. In the absence of a timely appeal, the decision became final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. The law, regulations and decisions of the United States Court of Veterans Appeals establish that the prior decisions of the regional office are final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990). When a claim is disallowed, the claim [generally] may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states: If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Masors v. Derwinski, 2 Vet.App. 181, 184 (1992). First, the Board must determine whether the evidence is "new and material." Second, if the Board determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran's claim in light of all the evidence, both new and old. The new evidence may not be sufficient in and of itself, but it may be just enough, when all the evidence is considered, to create an approximate balance of positive and negative evidence which would entitle the veteran to the benefit of the doubt. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). The veteran petitioned to reopen the claim and this appeal ensued. However, in support of the petition to reopen, the veteran submitted no probative evidence that tends to establish the current existence of a chronic psychiatric disorder or that a psychiatric disorder is due to service. In fact, the veteran has not submitted any relevant evidence in support of the petition. The evidence received since the prior denial concerns matters not in issue. In regard to the testimony to the effect that he has a psychiatric disorder, the veteran is not competent to self diagnose a condition. If his statements are incapable of establishing a well grounded claim, it follows that the statements may not serve to reopen a prior final decision. Accordingly, it is concluded that new and material evidence has not been submitted and that the claim is not reopened. ORDER The appeal for service connection for a left side disability is dismissed. Service connection for a cervical disability is denied. the petition to reopen a claim for service connection for a psychiatric disorder. H. N. SCHWARTZ 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.