BVA9503362 DOCKET NO. 93-10 826 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to service connection for gouty arthritis. ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had recognized guerrilla service from April 1945 to February 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a January 1993 rating decision by the Department of Veterans Affairs (VA) Manila, Philippines, Regional Office (RO), which denied entitlement to service connection for gouty arthritis. While the Board is cognizant of the fact that there is medical evidence of record indicating that the appellant has received treatment for rheumatism and osteoarthritis on several occasions since service, and that previous unappealed rating decisions denying service connection for those conditions are final, we find that the appellant's current claim of entitlement to service connection for gouty arthritis is a separate and distinct claim. We note that the RO, in the statement of the case issued in March 1993, provided the law and regulations on service connection, and treated the claim on a de novo basis. The appellant appears to raise the issue of entitlement to service connection for residuals of influenza and malaria. These claims are not inextricably intertwined with the current claim and have not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he has gouty arthritis that had it origins in service. 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 appellant'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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for gouty arthritis is well-grounded. FINDING OF FACT Although there is medical evidence of record indicating the initial manifestations of gouty arthritis more than 42 years after the appellant's separation from service, no evidence has been submitted which indicates that this disease is related to service, or is due to any in-service occurrence or event. CONCLUSION OF LAW The appellant has not submitted a well-grounded claim for service connection for gouty arthritis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991), 38 C.F.R. §§ 3.307, 3.309 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Additionally, where a veteran served continuously for 90 days or more during a period of war, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The threshold question to be answered at the outset of the analysis of any issue is whether a well-grounded claim has been submitted; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A veteran has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If a particular claim is not well-grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where such assertions are inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions with regard to the appellant's claim of entitlement to service connection for gouty arthritis are inherently incredible when viewed in the context of the total record. The appellant's service medical records show no complaint or finding of arthritis. The appellant's separation medical examination, conducted in January 1946, revealed that he had no musculoskeletal defects. An Affidavit for Philippine Army Personnel, dated in January 1946, shows that the appellant reported that he had had no wounds or illnesses in service. Although the are several affidavits, dated in the 1950's and 1960's, referencing the appellant 's treatment for rheumatism in service and thereafter, and also several private medical statements, dated from the 1950's to the 1980's, that show treatment after service for rheumatoid arthritis or osteoarthritis, there is no mention of gout or gouty arthritis in any of these affidavits or medical statements. The initial clinical manifestation of gouty arthritis is shown to have been at a December 1992 medical examination conducted by A. T. Ardiente, M.D., as evidenced by his diagnosis of gouty arthritis in his medical statement pertaining to that examination. As noted above, to establish service connection there needs to be a showing that the disability for which service connection is sought is, in some way, related to service. No such showing has been made as to the appellant's gouty arthritis. There is nothing in the clinical evidence that shows the presence of this disability either during service or for many years following separation from service. He has failed to provide any clinical evidence of a relationship to service. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Therefore, even though the appellant has now been diagnosed as having gouty arthritis, there is no objective evidence of medical causality from any incident in service, and as such, the claim is not well-grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994). The appellant lacks medical expertise and is not qualified to render an opinion regarding a causal relationship between his gouty arthritis and any claimed in-service onset. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93, (1993). Where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Id. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or an in-service event or occurrence, or where the disorders are not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). The United States Court of Veterans Appeals (Court) has expressed its concern that, in a situation in which the claim is not well- grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if he can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994) not attach to the rating decision of January 1993. ORDER Having found the claim of entitlement to service connection for gouty arthritis to be not well-grounded, the appeal is dismissed, and the rating action of January 29, 1993, is vacated. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.