BVA9507471 DOCKET NO. 93-13 879 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an ear disorder, hearing loss, and an eye disorder. 2. Entitlement to service connection for a left foot disorder and a gastrointestinal disorder. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from December 1949 to December 1952 and active duty for training from October 1979 to November 1980. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in not granting service connection for the disabilities at issue. It is contended that the disabilities at issue arose during his Korean Conflict service, and that service connection should be granted on that basis. With respect to his back disorder, the veteran feels that there is sufficient evidence of record to warrant a grant of service connection for a back disorder, as he claims it is due to an injury during his Korean Conflict 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 the claims for service connection for an ear disorder, hearing loss and an eye disorder are not well grounded. It is also the decision of the Board that the preponderance of the evidence is against the claims for service connection for a left foot disorder and a gastrointestinal disorder. It is the further decision of the Board that new and material evidence has not been submitted to reopen the claim for service connection for a back disorder. FINDINGS OF FACT 1. All relevant evidence which could reasonably be obtained by the RO has been obtained. 2. Any ear disorder, hearing loss, or eye disorder the veteran now has is not shown to have been present during service or shown by medical evidence to be related to service or to any incident therein. 3. The veteran was treated for a left foot condition and a gastrointestinal condition during service, but these were acute and transitory and left no chronic residuals. 4. It is not shown that the veteran has a chronic left foot disorder or a chronic gastrointestinal disorder which is related to service or to any incident therein. 5. Service connection for a back disorder was denied by the Board in December 1987 based on findings that any conditions treated in service were acute and transitory. 6. Evidence submitted since the December 1987 Board decision is cumulative in nature and is not competent to show that any current back disorder is related to service. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of well-grounded claims for service connection for an ear disorder, hearing loss, and an eye disorder. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 2. A chronic left foot disorder and chronic gastrointestinal disorder were not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, (West 1991); 38 C.F.R.§ 3.303 (1994). 3. Evidence received since the Board denied entitlement to service connection for a back disorder in December 1987 is not new and material, and the claim for that benefit is not reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds initially that the appellant's claims, with the exception of those for entitlement to service connection for an ear disorder, hearing loss and an eye disorder, are "well grounded;" that is, they are not inherently implausible. We also find that the facts relevant to the well grounded issues on appeal have been developed to the extent possible, and that the statutory obligation of the VA to assist the appellant in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, we note that the veteran had alleged treatment at public health service facilities between 1964 and 1980, and the RO made every effort to obtain the records of such treatment. Despite the RO's best efforts, records from only one of the named facilities were obtained, and that material was not relevant to any of the issues now before us. It is noteworthy that records identified by the veteran which could not be obtained deal with a period of time beginning about 12 years after his discharge from his first period of service and thus are not likely to be critical to his claims. I. Service Connection for an Ear Disorder, Hearing Loss, and an Eye Disorder The threshold question here is whether the veteran's claims are well grounded; that is, whether they are plausible, meritorious on their own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a claim is not well grounded, then the appeal fails; and there is no further duty to assist in developing the facts pertinent to the claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). Here, there is no indication that these conditions claimed were present during the veteran's first period of service. The claimant, by statute, has the duty to submit evidence that his claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the veteran is not met. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). To present a well-grounded claim for service connection there must be evidence showing that the claimed disability exists, and some competent evidence causally relating the claimed disability to service. In the instant case, the veteran has offered no medical evidence or opinion to support his position that his disabilities are of service origin. Service medical records are negative as to the presence of any of these claimed conditions. While we have considered the veteran's claims ,we find no supporting evidence. The veteran lacks the medical expertise to offer a medical opinion that relates any currently existing ear disorder, hearing loss or eye disorder to his Korean Conflict service. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). We have considered his hearing testimony to that effect, but note, once again, that as a layperson, he is not competent to relate these disabilities to events during his Korean Conflict service. We further note that it has neither been contended, nor is it shown, that the veteran's disabilities were incurred in or aggravated by his active duty for training from 1979 to 1980. As there is no competent evidence relating the veteran's claimed disabilities to his service, these claims are not well grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). II. Service Connection for a Left Foot Disorder and a Gastrointestinal Disorder As is noted above, the law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). To establish service connection, there must be evidence of current disability and of the requisite nexus of such disability to service. With respect to the veteran's left foot and gastrointestinal disorder claims, service medical records show that the veteran was treated in May and June 1950 for a sore left foot and an ingrown toenail on the left foot. However, subsequent service medical records including his discharge examination are negative for any indication of chronic residuals resulting therefrom. In other words, the records show that the veteran was treated for an acute and transitory condition, and that this condition resolved without any residual disability. The same is true for the veteran's gastrointestinal disorder. The veteran was treated in May 1952 for stomach complaints which were diagnosed as acute gastroenteritis. On separation examination in December 1952 there were no history of pertinent complaints provided by the veteran and no clinical findings of a gastrointestinal disorder. Records for the veteran's period of active duty for training in 1979-80 are also negative for pertinent findings or complaints with respect to these claimed disabilities. Thus, the record shows that the inservice treatment in 1950 and 1952 was for acute and transitory left foot and gastrointestinal conditions, which resolved without any residual disability. The record shows that the veteran was treated for stomach complaints in 1977, many years after his discharge from his first period of service, and at that time an exploratory laparotomy was performed. There is no medical evidence or opinion to relate the gastrointestinal condition treated in 1977 to his complaints in service in 1952. There is also no evidence to show a relationship between any currently existing left foot disorder and the veteran's treatment for an acute and transitory condition in 1950. Again, the veteran's service medical records for his period of active duty for training are negative as to any complaints or findings with respect to these conditions. Finally, we again have considered the veteran's hearing testimony, but his attempt to relate any current left foot or gastrointestinal disability to his service treatment in 1950 and 1952 is not competent evidence. Again, per Espiritu, as a layperson the veteran lacks the medical expertise to offer a competent opinion that any current left foot disorder or gastrointestinal disorder is of service origin. Based on the foregoing, we find that the preponderance of the evidence is against the veteran's claim. III. Whether New and Material Evidence has been submitted to reopen a claim for Service Connection for a Back Disorder The veteran's claim for entitlement to service connection for a back disorder was denied by the Board in December 1987. At that time, the Board found that a chronic back disorder or residuals of a back injury were not shown in service, and that a service parachute tower incident resulted in an acute and transitory injury, which resolved without any residual disability. The Board also found that an episode during a period of active duty for training where the veteran complained of back pain was also acute and transitory in nature as demonstrated by any reference to resulting pathology in subsequent medical records. Once a claim has been disallowed by the Board, the claim may not thereafter be reopened and allowed, unless new and material evidence is presented or secured with respect to the disallowed claim. 38 U.S.C.A. §§ 5108, 7104 (West 1991). New and material evidence means evidence not previously submitted to agency decision makers 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(a) (1994). In light of the prior Board decision, the matter for consideration is whether new and material evidence has been submitted which would warrant a reopening of the claim of service connection for a back disorder. We note that the only new evidence submitted since the prior Board decision in 1987 consists of hearing testimony by the veteran, the veteran's reiteration of his contentions, copies of service medical records previously of record, and medical records concerning treatment and findings subsequent to the 1987 Board decision. While the hearing testimony and recent medical records are "new evidence," in that they were not of record in December 1987, the former is not competent evidence, as the veteran does not have the requisite medical expertise to relate current back pathology to service; and the latter is cumulative because the presence of a back disorder was established at the time of the prior Board decision and is no longer at issue. The recent treatment records do not tend to relate the etiology of the veteran's current back disorder to service or to any incident therein. The newly submitted evidence, in combination with the evidence previously of record does not tend to show that the veteran's current back disorder originated or became worse in service. Consequently, it does not improve the prospects for success of his claim and is not new and material. ORDER The claims for service connection for an ear disorder, hearing loss and an eye disorder are dismissed. Service connection for a left foot disorder and a gastrointestinal disorder is denied. The appeal to reopen a claim for service connection for a back disorder is denied. GEORGE R. SENYK 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.