Citation Nr: 0002880 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-04 793A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a back condition. 2. Entitlement to service connection for an ankle condition. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for flat feet. 5. Entitlement to service connection for a psychiatric disorder. 6. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for herpes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from July 1975 to July 1979, with subsequent Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. There is no competent medical evidence of record to demonstrate that the veteran currently has a disability of the back, ankle, hypertension, flat feet, or a psychiatric disorder. 2. In July 1983, a RO denied service connection for herpes type II, claimed as residuals of gonorrhea; the veteran was duly notified of the decision in July 1983 and did not enter a notice of disagreement. 3. Evidence added to the record since the July 1983 RO rating decision is of sufficient significance that it must be considered in order to fairly decide the merits of the veteran's claim for service connection for herpes. 4. There is no competent medical evidence of record of a nexus between the veteran's current genital herpes and his military service, including gonorrhea in service. CONCLUSIONS OF LAW 1. The veteran's claims of entitlement to service connection for back, ankle, hypertension, flat feet, and psychiatric disorders are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The July 1983 rating decision denying entitlement to service connection for herpes type II, claimed as residuals of gonorrhea, is final. 38 U.S.C.A. § 7105(c) (West 1991). 3. Evidence received since the July 1983 rating decision pertinent to the issue of service connection for herpes is new and material, and the veteran's claim for service connection for herpes is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1999). 4. The veteran's claim of entitlement to service connection for herpes is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Before the Board may address the merits of a veteran's claim, however, it must first be established that the claim is well grounded. In this regard, a person who submits a claim for VA benefits shall have "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A well-grounded claim for service connection requires that three elements be satisfied. First, there must be competent evidence of a current disability, as established by a medical diagnosis; second, there must be competent evidence of an incurrence or aggravation of a disease or injury in service, as established by lay or medical evidence, as appropriate; third, there must be competent evidence of a nexus or relationship between the in-service injury or disease and the current disorder, as established by medical evidence or a medical opinion. See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). A service connection claim may also be well grounded, under 38 C.F.R. § 3.303(b), if evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical, unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If a chronic condition in service and since service is not shown, the claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service, continuity of symptomatology is demonstrated thereafter, and competent evidence relates a present disorder to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 493(1997). In this veteran's case, service medical records reflect that in August 1975 the veteran reported that he had twisted his ankle two weeks prior, and had pain on the top of his foot with edema. In June 1976, the veteran was noted to have a questionable venereal disease or urinary infection. In July 1977, the veteran was treated for a post gonococcal urethritis, and in August 1977 was treated for nonspecific urethritis. A November 1977 entry reflects that the veteran was diagnosed and treated for gonorrhea. A Report of Investigation reflects that in November 1977, as the result of a vehicle accident, the veteran sustained a trauma to the neck, a slight posterior neck pain, diagnosed as muscular strain. At the service separation examination in June 1979, the veteran reported that he did not have and had never had swollen or painful joints, skin diseases, high blood pressure, frequent or painful urination, bone, joint, or other deformity, recurrent back pain, foot trouble, or nervous trouble of any sort. He did indicate that he had, or had experienced, the venereal disease of gonorrhea and depression or excessive worry. Physical examination at service separation revealed that the genito-urinary system, feet, lower extremities, and spine and other musculoskeletal areas were normal. No psychiatric abnormality was examined or noted. At a periodic-quadrennial Reserve service examination in April 1983, the veteran reported that he did not have, and had never had, swollen or painful joints, skin diseases, high blood pressure, frequent or painful urination, bone, joint, or other deformity, recurrent back pain, foot trouble, depression or excessive worry, or nervous trouble of any sort. The veteran reported venereal disease without further specification as to the type of disease. Physical examination found the veteran's neck, vascular system, feet, lower extremities, spine, and skin to be normal, with a normal psychiatric examination. A VA Medical Certificate dated in June 1996 reflects the veteran's report of a history of treatment for genital herpes in 1993, a flare-up of genital herpes one month prior, and that flare-ups usually lasted 4-5 days. The assessment was genital herpes. The veteran contends that all of the claimed disabilities are related to his active duty service. He specifically contends that he has back problems which were incurred in a jeep accident in service in 1978 or 1979. After a review of the evidence of record, the Board finds that there is no competent medical evidence of record to demonstrate that the veteran currently has a disability of the back, ankle, hypertension, flat feet, or a psychiatric disorder. While the evidence of record reflects that in service the veteran reported twisting his ankle and sustained muscular strain of the neck, there is otherwise no evidence of an injury of the back, and there is no medical evidence of a current diagnosis of any of these disorders. The Court has held that "[i]n order for the veteran to be awarded a rating for service-connected [disability], there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury." Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 1991). In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Unsupported by medical evidence, a claimant's personal belief, however sincere, cannot form the basis of a well- grounded claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). For these reasons, the Board must find the veteran's claims of entitlement to service connection for back, ankle, hypertension, flat feet, and psychiatric disorders are not well grounded. 38 U.S.C.A. § 5107(a). As the veteran has not presented a well-grounded claim for service connection for any of the claimed disorders, the duty to assist the veteran, to include an additional VA compensation examination, does not arise. See Epps; see also Morton v. West, 12 Vet. App. 477 (1999) (per curiam) (absent the submission of a well-grounded claim, the Secretary cannot undertake to assist a veteran in the development of his or her claim). II. New and Material Evidence: Service Connection for Herpes Generally, a final decision issued by an RO may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. See 38 U.S.C.A. § 7105(c) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states, in part, that "[i]f 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." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). 38 C.F.R. § 3.156(a) (1999) provides that "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears "directly and substantially" upon the specific matter under consideration. Such evidence must be neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, such evidence must be "so significant that it must be considered in order to fairly decide the merits of the claim." See generally Hodge v. West, 155 F. 3d 1356 (Fed. Cir.1998). In this case, as there is a prior unappealed rating decision, the claim may not be reopened and allowed unless new and material evidence is presented. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156(a). In July 1983, the RO denied service connection for herpes (as a residual of gonorrhea). The veteran was duly notified of the decision in July 1983 and failed to enter a notice of disagreement. Therefore, the July 1983 rating decision denying entitlement to service connection for herpes became final. See 38 U.S.C.A. § 7105(b),(c); 38 C.F.R. §§ 20.302, 20.1103. The evidence which was of record at the time of the July 1983 RO rating decision consisted of service medical records reflecting that the veteran was treated in 1977 during service for gonorrhea, but not for herpes. Based on this evidence, the RO, in the July 1983 rating decision, found that there was no evidence of herpes in service and no chronic disability was shown by the latest examination or clinical findings in April 1983. The pertinent additional evidence submitted since the July 1983 rating decision consists of a June 1996 VA Medical Certificate which reflects a medical assessment of genital herpes. This is the first medical evidence of record demonstrating a medical diagnosis of herpes. The Board finds that this evidence added to the record since the July 1983 rating decision, which is new, is sufficiently significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a). Accordingly, the veteran's claim for service connection for herpes is reopened. See 38 C.F.R. § 3.104(a); Hodge, supra. The Court has set forth a three-part analysis to be applied when a claim to reopen is presented. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc). Under the Elkins test, the first step is to determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) to reopen the prior claim. If so, then the second step, whereby immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Justus v. Principi, 3 Vet. App. 510 (1992), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is not well grounded, the "adjudication process must come to a screeching halt despite reopening because a claim that is not well grounded cannot be allowed." Winters v. West, 12 Vet. App. at 206. If the claim is well grounded, then VA must ensure that the duty to assist has been fulfilled before proceeding to the third step, a merits adjudication. Id. While new and material evidence has been presented to reopen the veteran's claim for service connection for herpes, the evidence of record does not demonstrate that the claim for service connection for herpes is well grounded. There is simply no competent medical evidence of record of a nexus between the veteran's currently diagnosed genital herpes and his military service, including gonorrhea diagnosed in service. The veteran's lay assertions to the effect that his currently diagnosed genital herpes is related to gonorrhea in service do not constitute the required medical evidence of a nexus because, while a lay person is competent to describe symptoms, he is not competent to offer evidence which requires medical knowledge, such as a determination of etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Grottveit, 5 Vet. App. at 93 (if the only evidence on a medical issue is the testimony of a lay person, the claimant does not meet the burden imposed by 38 U.S.C. section 5107(a) and does not have a well-grounded claim). For this reason, the Board must find the veteran's claim for service connection for herpes to be not well grounded. See 38 U.S.C.A. § 5107(a). No further action, including a remand for further development, is required. See Winters at 206. ORDER The veteran's claim of entitlement to service connection for a back condition, being not well grounded, is denied. The veteran's claim of entitlement to service connection for an ankle condition, being not well grounded, is denied. The veteran's claim of entitlement to service connection for hypertension, being not well grounded, is denied. The veteran's claim of entitlement to service connection for flat feet, being not well grounded, is denied. The veteran's claim of entitlement to service connection for a psychiatric disorder, being not well grounded, is denied. New and material evidence has been submitted to reopen the veteran's claim for service connection for herpes. The veteran's claim of entitlement to service connection for herpes, being not well grounded, is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals