BVA9507214 DOCKET NO. 93-12 951 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to service connection for non-Hodgkin's follicular type lymphoma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from December 1943 to April 1946 and from December 1947 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from 1992 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California. It was noted in the August 1992 rating decision that the issue of entitlement to service connection for non-Hodgkin's lymphoma as secondary to exposure to mustard gas was being deferred pending further legislation on that issue. 38 C.F.R. § 3.316 (1994), a regulation which became effective July 31, 1992, authorizes service connection for veterans who underwent full body exposure to mustard gas during field or chamber experiments to test protective clothing or equipment during World War II and who subsequently developed a chronic form of several disabilities. The veteran's claim on this issue is referred to the RO for evaluation under the new regulation for exposure to mustard gas. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for non-Hodgkin's lymphoma, which he argues was incurred in service. He states that he had multiple lipomas in service and that his current lymphoma stems from that disorder. He states that he was exposed to various chemicals during service, including ammonia, chlorine, tear gas and cobalt which he also associates with his disorder. He asserts that a lipoma found at discharge was misdiagnosed, and that it was actually a lymphoma. 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 submitted evidence of a well grounded claim. FINDING OF FACT The claim for service connection for non-Hodgkin's lymphoma is not plausible. CONCLUSION OF LAW The claim for service connection for non-Hodgkin's lymphoma is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered is whether the veteran has presented evidence of a well-grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board finds that the veteran's claim for service connection for non-Hodgkin's lymphoma is not well grounded, and there is no further duty to assist the veteran in the development of his claim. Service medical records show that the veteran was treated in 1955 and 1956 for a small mass on the left arm. It was noted that the lipoma was excised and healing. When he was examined in 1965, multiple lipomas were noted over the body. Thereafter, there is nothing in the record to show treatment for any problems until 1983, over 15 years after discharge, when he was treated for a nodular mixed lymphoma at Naval facility and at Stanford University Hospital. The record shows that the veteran did complete a course in Biological Warfare in July 1960, however, there is no medical opinion or other medical evidence suggesting that the veteran's post-service lymphoma is etiologically related to the lipomas noted during service, chemical exposure during service or any other incident of service. The record shows that he was not stationed in Vietnam and did not participate in a radiation risk activity as defined by VA regulations. Moreover, a VA physician has stated after examining the veteran in January 1984, that his non-Hodgkin's, follicular-type lymphoma, was not related to lipomas. While the Board has considered the veteran's statements, he is not competent to give a medical opinion. See Espiritu v. Derwinski, 2 Vet.App. 492. 494 (1992). Where a determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required to establish that the claim is well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Since no such evidence has been submitted in this case, the Board must conclude that the veteran's claim is not well grounded. Although the Board has considered and denied the appeal on grounds different from that of the RO, which denied the claim on the merits, the veteran has not been prejudiced by the Board's decision. This is because in assuming that the claim was well grounded, the RO accorded the veteran greater consideration than the claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the veteran's claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49,747 (1992). ORDER Evidence of a well grounded claim not having been submitted, the claim of service connection for non-Hodgkin's lymphoma is dismissed. ROBERT E. SULLIVAN 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 (CONTINUED ON NEXT PAGE) 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.