BVA9505124 DOCKET NO. 91-21 798 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for residuals of claimed malaria. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a eye disorder, including residuals of an eye injury and retinitis. 3. Entitlement to service connection for a neck disorder. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to service connection for a disability manifested by blackout spells. 6. Entitlement to service connection for a hernia. 7. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from August 1942 to January 1946. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 1990 rating decision. Historically, service connection was denied for malaria and residuals of an eye injury to include retinitis in a February 1949 rating decision. The veteran was notified of that decision by correspondence dated later that month. The veteran did not initiate a timely appeal after such notification. He attempted to reopen his claims for service connection for malaria and eye disabilities in 1990. In its current status, the claim has been returned to the Board following the completion of development made pursuant to its August 1991 and January 1994 remands. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that he had been treated for all of the conditions at issue while serving in the military. Specifically, he reports that he has submitted sufficient evidence to justify an award of service connection for malaria and that a review of the record will disclose that he was treated for eye problems while in service. He reports that he is currently receiving treatment from VA for the same eye condition. With respect to diabetes, the veteran reports that although he was not treated for that condition in service, he was provided treatment by Dr. Wilson shortly after service. This physician is now deceased and his records are no longer available. In fact, the veteran contends that all the physicians that provided treatment over the years for the medical conditions at issue are now deceased, and their records are no longer available. The veteran, along with his representative, directs the Board's attention to an October 1991 statement of S. Walker, identified as nurse employed by Dr. Wilson. 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 presented new and material evidence to reopen the claims of service connection for malaria and an eye disorder to include residuals of an eye injury and choroid retinitis. It is also the Board's decision that the veteran has not submitted sufficient evidence to justify the belief of an impartial individual that the claims for service connection for a neck disorder, diabetes mellitus, disability manifested by blackout spells, a hernia and for an acquired psychiatric disorder, including PTSD, are well grounded. FINDINGS OF FACT 1. Service connection was denied for malaria in an unappealed rating decision, dated in February 1949. 2. Service connection was denied for an eye disorder, including residuals of an eye injury or retinitis, in the unappealed rating decision of February 1949. 3. The evidence received into the record since the February 1949 rating decision, includes consists of various statements from the veteran's acquaintances, an October 1991 statement from a nurse who formerly worked for a private physician who had treated the veteran and reports private and VA evaluation and treatment. . 4. The evidence received into the record, though new, is cumulative, and when viewed in the context of the entire record, does not created a possibility of a change in the outcome of the veteran's claims for service connection for malaria and an eye disorder, including residuals of an eye injury and retinitis. 5. No competent evidence has been received to show that the veteran has a neck disability that may be associated with injury or disability of his active service. 6. No competent evidence has been received to show that the veteran has diabetes mellitus that may be associated with injury or disability of his active service. 7. No competent evidence has been received to show that the veteran has a disability manifested by blackout spells that may be associated with injury or disability of his active service. 8. No competent evidence has been received to show that the veteran has a hernia that may be associated with injury or disability of his active service. 9. No competent evidence has been received to show that the veteran has an acquired psychiatric disorder, including PTSD that may be associated with his active service. CONCLUSIONS OF LAW 1. The claim for service connection for malaria is not well grounded, and a reopened claim cannot be presented. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The claim for service connection for an eye disorder, including residuals of an eye injury and retinitis, is not well grounded, and reopened claims cannot be presented. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1994). 3. A claim for service connection for a neck disorder is not well grounded. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991). 4. A claim for service connection for diabetes mellitus is not well grounded. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991). 5. A claim for service connection for a disability manifested by blackouts is not well grounded. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991). 6. A claim for service connection for a hernia is not well grounded. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991). 7. A claim for service connection for an acquired psychiatric disorder, including PTSD is not well grounded. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law requires that a claimant shall have the burden of submitting a claim that is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The VA benefits system requires more than just an allegation; but a claimant must submit supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Although the claim need not be conclusive, the statute requires the claim must be accompanied by evidence. Id. Service connection was previously denied for malaria and an eye condition in an unappealed rating decision, dated in February 1949. The veteran's service medical records make no reference either of these conditions. An October 1948 medical statement from H. Manasco, M.D., shows that the veteran was treated "about March 1946 for recurring malaria...." Reports of VA medical examination, dated in October 1948, show that during the veteran's active service and shortly thereafter he experienced chills that simulated malaria. However, the parasite was never demonstrated in his blood. Clinical data received into the record since that time do not disclose evidence of malaria. As previously noted, the Board's attention has been directed to the October 1991 statement from S. Walker, identified as a nurse employed by Dr. W. K. Wilson from 1949 to 1959. With regard to the veteran's claim that he had been treated after his service, it was note that the veteran has been "treated for his claimed conditions" and that "Dr. Wilson has been deceased for several years and his records cannot be obtained." This statement is too vague to establish an inference that the veteran had a valid diagnosis of malaria during the alleged period of treatment. See Tirpak, 2 Vet.App. at 611. Just as important, this statement and the remainder of the clinical record fail to establish that the veteran currently has malaria or residuals thereof. Examination in October 1991, pursuant to the August 1991 Board remand, did not verify the presence of malaria. While disability in the left eye has been shown in the post- service years, there is no evidence of record to establish a nexus between the conditions identified and injury or disease of the veteran's active service. Records of VA inpatient treatment, dated in October 1948, show that the veteran was hospitalized for "diminution of vision in the right eye" for a period of 10 days to 2 weeks. The veteran denied having a history of injury to the eye. The clinical examination was thought to be consistent with a diagnosis of "retrobulbar neuritis, cause undetermined." In December 1948, the veteran was readmitted for further observation for his complaints of impaired vision in the right eye. At that time, the specialists reached the diagnosis of choroidal retinitis, central, cause undetermined. More recently, private medical statements from February 1992 and April 1993 show that the veteran has adult onset vitelliform macular degeneration, with a visual acuity of 20/25 in the right eye and 20/50 in the left eye. The veteran has not brought forth any evidence that would establish a connection between these post-service findings and his active service. The veteran had a furuncle of the neck that was excised and drained in October 1945. There is no evidence of recurrence or residual disablement during the remainder of his active service. Nothing pertinent was noted on the medical examination for discharge from active service, although the condition in October 1945 was noted by history. Likewise, there is no evidence that any type of disability or disease involving the neck is currently show. The veteran's service medical records contain no reference to diabetes mellitus, a disability manifested by blackouts, a hernia, or an acquired psychiatric disorder. In fact, the reference to diabetes was made in private medical records dated from June 1985 to August 1990. Likewise, a huge right inguinal hernia was first noted in a July 1990 report. The examiner indicated that the condition had been present for about one year. VA neurological testing, conducted in October 1991, failed to disclose the presence of any organic disorder manifested by blackouts. The examiner indicated that the veteran's "spells" were related to his anxiety. Post-service treatment records show that the veteran had complaints of tension and nervousness that he reported during the October 1948 VA hospitalization. Reports of VA outpatient treatment from October to December 1991 make reference to chronic anxiety and depression. Generalized anxiety disorder, conversion disorder, insomnia, and disomnia were noted on the recent VA examinations. However, none of these conditions was shown to be related in any way to the veteran's active service. Finally, a diagnosis of PTSD has not been verified by any psychiatric examination, including the September and October 1991 examinations conducted pursuant to the 1991 remand. Malaria, a neck condition, a disability manifested by blackout spells, and PTSD are not currently show. Under the provisions of 38 U.S.C.A. § 1110, service connection can be granted in part for "disability resulting from personal injury suffered or disease contracted in line of duty...." The disablement or disease must be manifested in order for a grant of service connection. Without evidence showing that a disease or disability is present, no plausible claim for service connection can be presented, and the claim is not well grounded. See Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). On the other hand, eye disability, diabetes mellitus, a hernia,and generalized anxiety disorder, while shown currently, were not shown until many years after the veteran's separation from service and have not been associated with injury or disease note in his active service. The veteran contends that the disabilities at issue are related to his active service and has submitted various statements from acquaintances and family members to attest the presence of these conditions. Nonetheless, the veteran is advised that 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. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Consequently, lay assertions of medical causation or medical diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet.App. 91, 95 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). On this basis, the Board finds that the veteran's allegations alone are an insufficient basis on which to establish well-grounded claims with respect to the issues of entitlement to service connection. Specifically with respect to the claims for service connection for malaria and an eye disability, including residuals of an eye injury and retinitis, if lay assertions of medical causation will not suffice initially to establish a plausible, well-grounded claim, it necessarily follows that such assertions cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. Moray v. Brown, 5 Vet.App. 211, 214 (1993). Thus, the claims for service connection for malaria and an eye disability, including residuals of an eye injury and retinitis, previously denied in February 1949, cannot be reopened. The United States Court of Veterans Appeals (Court) has held that "[i]f a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate that claim." Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In the absence of a question of law or fact over which the Board has jurisdiction, the claim must be dismissed under 38 U.S.C.A. § 7105(d)(5)(West 1991). Inasmuch as the veteran has not presented a well-grounded claim with respect to malaria and an eye disability to reopen those claims for service connection and in light of the absence of well-grounded claims for a neck disorder, diabetes mellitus, a disability manifested by blackouts, a hernia, and an acquired psychiatric disorder, including PTSD, the Board concludes that the veteran's appeals are dismissed. ORDER Evidence of a well-grounded claim has not been submitted, and a reopened claim for service connection for malaria and an eye disability, including residuals of an eye injury and retinitis, cannot be presented. The appeal is dismissed. The claims for service connection for a neck disorder, diabetes mellitus, disability manifested by blackouts, a hernia, and for an acquired psychiatric disability, including PTSD, are not well grounded. The appeals are dismissed. LAWRENCE M. 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 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.