BVA9504570 DOCKET NO. 93-12 407 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for Hodgkin's lymphoma. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from March 1968 to January 1970. This appeal arose from a December 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO denied entitlement to service connection for Hodgkin's lymphoma. 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 Hodgkin's lymphoma which had its onset within one year of service. He states that he had night sweats within one year of returning from Vietnam. He states that at discharge he was given malaria pills while processing out of service at Oakland with instructions to take them if he had recurrent fevers or other symptoms. He states that he experienced nights sweats up to the time he was diagnosed with Hodgkin's lymphoma, but he never consulted a physician because they were never severe. 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 a well grounded claim for service connection for Hodgkin's lymphoma. FINDING OF FACT The claim for service connection for Hodgkin's lymphoma is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for Hodgkin's lymphoma is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDING AND CONCLUSION Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that the claim is 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 claim for service connection for Hodgkin's lymphoma is not well grounded, and 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. §§ 1110, 5107. If not shown during service, service connection may be granted for Hodgkin's lymphoma if shown disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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 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 a well grounded claim, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claim not well grounded. Although the veteran has contended to the contrary, his service medical records are totally devoid of any evidence of Hodgkin's lymphoma, nor was this disorder shown during his first post service year. The appellant claims that he suffered from night sweats or fever in service and during his first post service year up to the time he was diagnosed with Hodgkin's lymphoma; however, he has produced no evidence of such night sweats said to have been treated with malaria pills. Moreover, when examined for separation from service, he denied a history of night sweats. He acknowledges that he never consulted a physician for his symptoms because he did not consider them that severe to warrant professional care. The record shows that the first demonstrated evidence of Hodgkin's lymphoma occurred when the appellant was privately hospitalized during January and February 1976, for treatment of a comminuted fracture of the right thumb. On a routine chest x-ray he was found to have a superior mediastinal mass, diagnosed as Hodgkin's nodular sclerosis with positive supraclavicular node on biopsy. There was no evidence of Hodgkin's lymphoma prior to the date of the current hospitalization. Later dated evidence on file shows the veteran's diagnosis of Hodgkin's Disease has been confirmed. There is no competent medical evidence of record to relate the post service reported Hodgkin's Disease to active service. This disorder was initially shown approximately six years following the veteran's service. The veteran has failed to present a well grounded claim. There is no cognizable evidence of record to substantiate onset of Hodgkin' lymphoma in service or during the first post service year. A well grounded claim cannot be predicated on the veteran's allegations of onset of Hodgkin's lymphoma symptomatology during the first post service year. The veteran's claim is not well grounded and must be dismissed. The Board recognizes that the veteran's claim has 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 claim and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision. In this regard, the Board points out that by the action of dismissing his claim, the Board has not burdened the veteran with a prior final adjudication on the merits. Thus, if he is able to submit a well grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim 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 claim was well grounded, accorded him greater consideration than his claim in fact warranted under the circumstances. Bernard. To remand the case to the RO for consideration of the issue of whether the appellant's claim is 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 Hodgkin's lymphoma 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.