Citation Nr: 0005752 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 95-28 680A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a headache disorder. 2. Entitlement to service connection for athlete's feet. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from August 24, 1989, to April 7, 1993; he also had 2 years, 11 months and 29 days of active duty prior to August 24, 1989. This matter comes to the Board of Veterans' Appeals (Board) following a November 1993 decision of the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for athlete's feet, headaches, bilateral knee disabilities, right ear hearing loss with tinnitus, residuals of a right foot injury, depression, a recurrent plantar wart on the right foot, a skin rash, residuals of a left hamstring injury, a left shoulder disorder, and post-traumatic stress disorder. By a June 1994 decision, service connection for right ear hearing loss with tinnitus was granted. In February 1998, service connection for carpal tunnel syndrome and pseudofolliculitis barbae was denied. Thereafter, in an April 1998 statement, the veteran indicated that the only decisions he then disagreed with were the denials of service connection for headaches, athlete's feet, and carpal tunnel syndrome. The RO notified the veteran that it construed his April 1998 statement as a withdrawal of all other issues from appeal, see 38 C.F.R. § 20.204(b) (1999), and the veteran did not disagree with this interpretation of the April 1998 statement. In October 1999, a statement of the case as to the denial of service connection for carpal tunnel syndrome was issued for the first time, but no substantive appeal was thereafter filed. 38 C.F.R. § 20.200 (1999). Consequently, the only issues remaining before the Board are entitlement to service connection for a headache disorder and athlete's feet. The Board notes that the veteran, in an April 1998 statement, notified the New York, New York, RO that he had moved to Syracuse, New York. His claims file was subsequently transferred to the Buffalo, New York RO. FINDING OF FACT No competent medical evidence has been submitted showing that the veteran has a headache disorder or athlete's feet that is attributable to military service or event coincident therewith. CONCLUSION OF LAW The claim of service connection for a headache disorder or athlete's feet is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran and his representative contend that the veteran has headaches and athlete's feet that are the result injuries or disease sustained during his military service. It is also requested that the veteran be afforded the benefit of the doubt. A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). 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 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible, or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in-service injury or disease and current disability. This third element may also be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the veteran's case, service medical records show complaints and/or treatment for headaches in September 1989, February 1990, November 1992, and March 1993. At the time of the September 1989 complaint, the veteran was under treatment for a gastrointestinal problem. In February 1990, the veteran complained of headaches when drinking alcohol and was diagnosed with alcohol dehydration. In November 1992 and March 1993, the examiners opined that the headaches were stress or tension related, respectively. An April 1991 treatment record also shows that the veteran injured his neck while running. Service medical records, including December 1988 and September 1992 examinations, are otherwise negative for complaints, diagnoses, and/or treatment for headaches. Service medical records also show the veteran's complaints and/or treatment for athlete's feet in October 1989 and again at a September 1992 examination. More recently, the veteran underwent VA examinations in August and September 1993. At a general medical examination, while the veteran's nervous system was found to be normal, a fungus infection of the feet was diagnosed. Nevertheless, at an examination of the feet, not only did the veteran not complain of athlete's feet, no such problem was diagnosed. VA treatment records, beginning in June 1993, show the veteran's periodic complaints, diagnoses, and/or treatment for headaches, which were variously characterized as tension headaches (see VA treatment records dated in August 1997, September 1997, and December 1997) and migraine headaches (see VA treatment record dated in January 1998). See VA treatment records dated in June 1993, July 1993, February 1994, October 1996, January 1997, August 1997, September 1997, December 1997, January 1998, and October 1998. The records, beginning in June 1993, show the veteran's periodic complaints and/or treatment for "itchy feet" and a fungus infection of the feet, variously diagnosed as bilateral tinea pedis (see VA treatment records dated in October 1997) and athlete's feet (see VA treatment records dated in June 1993 and October 1998). See VA treatment records dated April 1993, June 1993, July 1993, October 1997, April 1998, and October 1998. The Board finds that what is significant about the record on appeal is, paradoxically, what it does not include. None of the records on appeal includes a medical nexus opinion that tends to show a relationship between the headaches or athlete's feet noted after service and the veteran's military service or events coincident therewith, such as the stress/tension headaches diagnosed in November 1992 and March 1993, or the athlete's foot diagnosed in October 1989 and September 1992. Likewise, no medical opinion has been presented that tends to show a relationship between current disability and continued symptoms since service. The Board recognizes that the veteran is competent to describe an injury during military service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (lay witnesses are competent to describe painful experiences and symptoms that result therefrom); King v. Brown, 5 Vet. App. 19, 21 (1993); Caldwell v. Derwinski, 1 Vet. App. 466 (1991) (the Board is obligated to accept as true evidentiary assertions by the veteran for the purpose of determining whether a claim is well grounded). Nevertheless, no medical evidence has been presented that tends to link any current headache disorder or athlete's feet to any in-service problem with headaches or skin problems with the feet. While the veteran, through written statements, is competent to provide information as to the visible symptoms he experienced during and after service, he has not been shown to be competent to provide the medical opinion evidence necessary to make his claims of service connection well grounded. See Espiritu, supra; Moray v. Brown, 5 Vet. App. 211 (1993) (persons without medical expertise are not competent to offer medical opinions); Grottveit v. Brown, 5 Vet. App. 91 (1993); Bostain v. West, 11 Vet. App. 124 (1998). Because no competent medical evidence has been presented to link currently diagnosed disabilities to military service, his claims are not well grounded. The principle of reasonable doubt does not apply until after the veteran has submitted a well-grounded claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (The Board notes that the veteran has not contended that headaches are manifestations of an undiagnosed illness as contemplated by 38 C.F.R. § 3.317 (1999).) ORDER Service connection for a headache disorder is denied. Service connection for athlete's feet is denied. MARK F. HALSEY Member, Board of Veterans' Appeals