BVA9503973 DOCKET NO. 93-10 298 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for flat feet. 2. Entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed. 3. Entitlement to service connection for diabetes mellitus. ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from October 3 to November 1, 1976. The claims file contain a report of a rating decision dated in December 1985 denying entitlement to service connection for severe bilateral pes planovalgus on the basis that such disorder preexisted active service and was not aggravated therein. The veteran was notified of this determination by letter dated in January 1986, and of his right to appeal it within one year from the date of the letter. The veteran did not timely file a notice of disagreement with the denial. This appeal arose from an October 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for flat feet, and denied entitlement to service connection for a psychiatric disorder and diabetes mellitus. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for a psychiatric disorder, and diabetes mellitus as each was present during service. He states that he was not seen for these problems during service because "it was difficult" to get care "on sick call". As to his flat feet, he argues that while on active duty he acknowledged pain and sweating of his feet but that his condition was not considered chronic and he was not required to wear corrective shoes. He states that his bilateral foot problems have gradually worsened. 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 new and material evidence has not been submitted to reopen a claim of entitlement to service connection for flat feet and the claims for service connection for a variously diagnosed chronic acquired psychiatric disorder and diabetes mellitus are not well grounded. FINDINGS OF FACT 1. In December 1985, the agency of original jurisdiction denied entitlement to service connection for bilateral planovalgus, finding that it preexisted service and was not aggravated thereby. 2. Additional evidence submitted since then only shows that the veteran has required treatment during post service years for flat feet. 3. The additional evidence submitted since the December 1985 rating decision refers to treatment since 1989, and when viewed in the light of all of the evidence of record, does not raise a reasonable possibility of changing the prior outcome. 4. The claim for service connection for a variously diagnosed chronic acquired psychiatric disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 5. The claim for service connection for diabetes mellitus is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The decision of the agency of original jurisdiction in December 1985, denying the veteran's claim of entitlement to service connection for bilateral pes planovalgus, is final. 38 U.S.C.A. §§ 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). 2. Evidence received since the agency of original jurisdiction denied entitlement to service connection for bilateral planovalgus in December 1985 is not new and material, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 3. The claim for service connection for a chronic acquired psychiatric disorder, variously diagnosed, is not well grounded. 38 U.S.C.A. § 5107. 4. The claim for service connection for diabetes mellitus is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a variously diagnosed psychiatric disorder and diabetes mellitus. 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). The Board finds that the claims of entitlement to service connection for a variously diagnosed chronic acquired psychiatric disorder and diabetes mellitus are not well grounded. The Board notes that service connection may be granted for any disorder if it is shown to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107. Service connection may not be granted for a disorder shown to be due to a veteran's own willful misconduct. 38 C.F.R. §§ 3.1(n), 3.301(c)(2)(3). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is 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 trained in the field of medicine and otherwise is not a health care professional. The veteran cannot be recognized as competent medical authority in his declarations that a psychiatric disorder and diabetes mellitus were present during service. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders his claims not well grounded. The veteran served on active duty for a very brief period of time. His service medical records are totally devoid of a finding of diabetes mellitus or a psychiatric disorder, and he does not argue otherwise. Evidence of diabetes mellitus and psychiatric impairment was initially reported in 1989, many years following service. There is no medical evidence linking diabetes or a psychiatric impairment with service. The veteran has produced no cognizable evidence demonstrating that either a psychiatric disorder or diabetes mellitus begin during service or stemmed from an incident in service. Accordingly, the veteran has failed to present well grounded claims as to service connection for a psychiatric disorder and diabetes mellitus. His claims as to these issues must be dismissed. 38 U.S.C.A. § 5107. 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 to dismiss his claims. Moreover, a finding that the veteran has not submitted a well grounded application is a denial that there is a claim to reopen. Glynn v. Brown, 6 Vet.App. 523, 528 (1994). Hence the Board is not denying service connection, the Board is merely stating that the appellant has failed to meet his initial burden of presenting a plausible claim to reopen. As such, this decision finding that the claimant's attempt to reopen is not well grounded will not stand as a bar to any further attempts to reopen on his part. II. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for flat feet. The Board observes that service connection cannot be granted for a disorder found to have clearly preexisted active service and not to have been aggravated therein. 38 U.S.C.A. §§ 1131, 1153, 5107; 38 C.F.R. § 3.306(c). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137. As the Board noted earlier, service connection for flat feet was previously denied by the RO when it issued a rating decision in December 1985. The claimant did not appeal that determination and it became final. The veteran's claim may not be reopened absent the presentation of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility), see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992), that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the prior outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence which was of record when the RO previously considered the appellant's case on the merits in December 1985 consisted of the service medical records and post service VA outpatient reports dated in 1985. The service medical records showed that no abnormalities of the feet were found when the veteran was examined for enlistment in November 1975. On the medical history part of the examination he denied having foot trouble. On October 15, 1976, he reported with complaints of foot pain. An examination disclosed clinical findings resulting in a diagnosis of pes planus. Another examination conducted a few days later concluded in a diagnosis of severe pes planovalgus. The October 1976 report of examination for a Medical Evaluation Board shows a normal clinical evaluation of the feet. On the medical history part of the examination the veteran admitted to a history of foot trouble and complained of tender feet and arch pain. In an October 1976 request for separation from active service, the veteran reported having had flat feet for five years. The post service VA outpatient treatment reports are dated in May and August 1985, and show the veteran was treated for his bilateral foot symptomatology. He reported in August pain in his arches, feet, and ankles for "7-8" years and increasing problems preventing him from working for past 5 years. He had not sought medical attention for a foot problem prior to May 1985. The evidence added to the record since the December 1985 RO rating decision denying entitlement to service connection for pes planus consists of VA treatment reports dated in 1989 and thereafter. After a review of the record, the Board concludes that the additional evidence is not "new" and "material." Accordingly, the veteran's claim is not reopened and the agency of original jurisdiction's December 1985 decision remains final. "New and material evidence" means "evidence not previously submitted...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). The additional evidence in the veteran's case is not new and material in view of the fact that it consists of recently dated medical reports of the veteran's treatment for flat feet. There is no reasonable possibility that the additional evidence, when considered in the context of all the evidence would change the outcome of the December 1985 decision by the RO denying entitlement to service connection for bilateral planovalgus. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The Board notes that these additional records of treatment long after service does not provide a basis to concludethat his preexisting flat feet were aggravated in service. The evidence that would be material on the point of aggravation would be evidence more contemporaneous with service. In other words, evidence indicative of pathology existing between 1975 and 1978 would be more on point. It may be acknowleged for argument sake that flat feet are worse now, ten or more years after service. The Board therefore concludes that the additional evidence submitted by the veteran is insufficient to reopen his claim. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for flat feet, the benefit sought on appeal is denied.. The claim for entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, is dismissed. The claim for entitlement to service connection for diabetes mellitus is dismissed. BRUCE KANNEE 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.