BVA9506319 DOCKET NO. 93-13 377 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for an abdominal disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from July 1958 to March 1962. This appeal arose from a February 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The RO denied entitlement to service connection for low back and abdominal disorders. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has low back and abdominal disorders related to his service, thereby warranting entitlement to grants of service connection. 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 well grounded claims for service connection for low back and abdominal disorders. FINDINGS OF FACT 1. The claim for service connection for a low back disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim for service connection for an abdominal disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The claim for service connection for a low back disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for service connection for an abdominal disorder is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claims are well grounded; that is, that the claims are plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claims for service connection for low back and abdominal disorders are not well grounded, and that they should be dismissed. Service connection may be granted for any disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 1991). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claims are possible or plausible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for well grounded claims, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claims not well grounded. Although the veteran has contended to the contrary, he is not shown by the evidence of record to have either a chronic low back or an abdominal disorder which is related to his service. In this regard, the Board observes that the service medical records contain no evidence or findings of either a chronic low back or an abdominal disorder. The veteran denied a history of any relevant pathology and no pertinent abnormalities were found when the appellant was examined for separation from active service in March 1962. The appellant did not file a claim for compensation benefits for low back and abdominal disorders until October 1992, more than 30 years after his separation from active service. In a November 1992 letter, Louis A. Catalano, M.D., advised that the veteran had low back pain with multiple surgeries with left sciatica and arachnoiditis; chronic pain syndrome; and left ischial bursitis. In a January 1993 letter, Dr. Catalano advised that the appellant had been under his care since 1986, and that the veteran had been on continuous disability since 1973. In a December 1992 letter, Edgard A. Boone, M.D., advised that the veteran had been under his care for approximately two years. It was noted that the veteran's back problems had predated the physician's care. The private physician's understanding was that the veteran's back pain was related to some kind of work-related episode. Dr. Boone stated that he could not comment on any inservice back pain reported by the veteran, and determining when the veteran’s back pain began was beyond his capabilities. A December 1992 VA examination concluded in a diagnosis of probable multi-level chronic discogenic disease requiring multiple back surgeries, without demonstrable evidence of compressive radiculopathy, with no permanent residual nerve root damage. It was noted the veteran related that his long standing back pain was of at least 35 years duration, but that it was not intense until 1972. A December 1992 VA gastrointestinal examination concluded in a finding of probable chronic reflux esophagitis. It was noted the veteran had related a history of indigestion and reflux symptoms occurring intermittently for the prior twenty years. A December 1992 VA general medical examination report notes that the veteran stated he had not worked since 1973, allegedly because of a back condition. Before that he worked for six years as a construction worker. As the evidence discussed above shows, clinical evidence of chronic low back and gastrointestinal disorders was initially reported many years after service. Significantly, however, the veteran has presented no competent and cognizable evidence to show that either his low back or his abdominal disorders are related to his service. Hence, the veteran has not presented evidence of well grounded claims for service connection for low back and abdominal disorders; accordingly, his claims must be dismissed. Grottveit; Tirpak. In reaching this decision, the Board recognizes that the veteran's claims have been disposed of in a manner different from that utilized by the RO. The Board therefore considered whether the claimant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claims and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. In this regard, the Board points out that by the action of dismissing his claims, the Board has not burdened the veteran with a prior final adjudication on the merits. Thus, if he is able to submit well grounded claims in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claims after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The Board also observes that the RO, in assuming that the veteran's claims were well grounded, accorded him greater consideration than his claims in fact warranted under the circumstances. Bernard. To remand the case to the RO for consideration of the issue of whether the appellant's claims are well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). ORDER The claim for service connection for a low back disorder is dismissed. The claim for service connection for an abdominal disorder is dismissed. DEREK R. BROWN 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.