BVA9501928 DOCKET NO. 90-24 499 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a dermatologic disorder of the ears. 2. Entitlement to service connection for a disorder affecting the eyes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from March 1963 until March 1966 and from July 1969 until January 1986. The Board of Veterans' Appeals (the Board) denied service connection for a dry skin condition of the ears and an eye disorder in March 1991. The veteran appealed to the United States Court of Veterans Appeals (the Court). In July 1992, the Court vacated the Board's determination and granted the Appellee's Motion for Remand and for Stay of the Proceedings. The case was subsequently remanded by Board decisions of February 1993, and July 1994 and is once again before the Board for appropriate disposition. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he was treated for a recurring dry skin condition of the ears in service which has developed into a chronic disorder. He also contends that he experiences continuing eye symptomatology for which he first sought medical attention in service. It is maintained that service connection should now be granted by the Board for his skin and eye conditions. 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 does not currently have well-grounded claims for entitlement to service connection for a skin disorder of the ears and a disorder affecting the eyes. FINDING OF FACT The claims for service connection for a skin disorder of the ears and a disorder affecting the eyes are not supported by cognizable evidence showing that the claims are capable of substantiation. CONCLUSIONS OF LAW 1. The claim for service connection for a skin disorder of the ears is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for a disorder affecting the eyes is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, ones which are plausible and meritorious on their own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board finds that inasmuch as the veteran did not report for scheduled examinations and has not produced evidence of current disability, the claims for service connection for a skin disorder of the ears and a disorder affecting the eyes are not capable of substantiation, and are consequently not well grounded. As noted in the Introduction portion of this decision, this case was remanded on two previous occasions to further develop the record. The Board deemed these actions germane to determine whether the claims were well-grounded, and to acquire the necessary foundation to support adequate reasons and bases, as stipulated in the Motion granted by the Court, in the subsequent disposition and new determination in this matter. The veteran was requested by remand of February 1993 to submit to Department of Veterans Affairs (VA) compensation and pension examinations to determine whether there were current dermatologic or ophthalmology residuals of inservice symptoms, and to furnish the names and addresses of any medical providers who had treated him for the claimed disorders. The VA examinations were scheduled and notification of such was sent to his last shown address of record. He failed to report as scheduled and also did not respond to the VA Regional Office's (RO) request for information pertaining to his medical providers. There is no indication that the veteran did not receive the notices sent to him as no correspondence was returned. When the case was returned to the Board, it was observed that the veteran, who is already in receipt of VA compensation for a service-connected disability, was receiving disability checks at a residence in Honolulu, Hawaii. The case was remanded again in July 1994 requesting that notification of the VA examination and other information contained in the prior remand be mailed to that location. The appellant's representative was also requested to assist in ascertaining the veteran's current and correct address. However, the appellant has not responded to date and the representative has not indicated that there has been a successful attempt to acquire the necessary information. Additionally, correspondence to the veteran from the RO dated in August 1994 advised him that if he was not heard from within 60 days from the date of that letter, it would be assumed that he did not intend to pursue his appeal and that the record would be closed. The appellant did not respond and no correspondence indicating non receipt was returned. The Board finds under these circumstances that as there is no clinical evidence to support the existence of any current disorders as to the matters contended, the claims are therefore not capable of substantiation at this time. In reaching this determination the Board recognizes that these issues are being disposed of in a manner different from that utilized by the RO. The Board has 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 his failure to meet his obligation in the adjudication process, the Board concludes that he has not been prejudiced by the decision to dismiss the appeal. Moreover, a finding that the appellant has not submitted a well grounded application is a denial that there is a valid claim. Glynn v. Brown, 6 Vet.App. 523, 528 (1994). Hence, the Board is not denying service connection for a skin disorder of the ears and a disorder affecting the eyes, but merely finding that the appellant has failed to meet his burden of presenting a claim capable of substantiation at this time. As such, this decision does not stand as a bar to any future attempt to secure service connection in this regard. The RO is instructed to vacate the relevant rating action pertaining to this issue. 38 U.S.C.A. § 5107(a). ORDER The appellant has not presented well-grounded claims. The appeal is dismissed. ALBERT D. TUTERA 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.