Citation Nr: 0007443 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-20 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES Entitlement to service connection for tinnitus, transient ischemic attacks, dementia and seizure disorder. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney ATTORNEY FOR THE BOARD T. S. Tierney, Counsel INTRODUCTION The veteran served on active duty from June 1941 to January 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Initially, the Board notes that the veteran has been declared incompetent for VA purposes and that his wife has been designated as the payee and is the appellant in this appeal. The Board also notes that the July 1998 notice of disagreement contains the mistaken impression that the June 1998 rating decision denied service connection for a back disability, an ulcer disability, and a nervous condition. The June 1998 rating decision denied a rating in excess of 10 percent for the service-connected right ear hearing loss (which was not appealed) and denied service connection for tinnitus. Service connection for back and ulcer disabilities was denied in a rating decision dated in June 1947, which was not appealed and became final. Therefore, the Board believes that the recent statements claiming service connection for back and ulcer disabilities should be construed as requests to reopen the previously denied claims. Accordingly, these issues are referred to the RO for appropriate action. The issue of entitlement to service connection for a nervous condition was not raised by or on behalf of the veteran prior to the July 1998 notice of disagreement. Service connection for a nervous condition and heart disability was denied in a rating decision dated in February 1999. A notice of disagreement was submitted in March 1999 and a statement of the case was issued in August 1999. The cover letter sent with the statement of the case informed the appellant of the requirement that a substantive appeal be submitted if she desired appellate review with respect to these new issues. No subsequent correspondence has been received from the appellant or the representative. Therefore, the Board has concluded that the appellant is not currently seeking appellate review with respect to these issues. FINDINGS OF FACT 1. The claims for service connection for tinnitus, transient ischemic attacks (TIAs), dementia, and seizure disorder are not plausible. 2. The claims currently on appeal do not involve a question of medical complexity or controversy. CONCLUSIONS OF LAW 1. The claims for service connection for tinnitus, TIAs, dementia, and seizure disorder are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. An independent medical expert's opinion is not warranted. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is contended that service connection is warranted for the disabilities at issue because they were caused by service head trauma. Applicable law provides that service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Service incurrence of organic disease of the nervous system, epilepsy, arteriosclerosis or brain hemorrhage or thrombosis may be presumed if it is manifested to a compensable degree within a year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). However, as a preliminary matter, the Board must determine whether the veteran has submitted evidence of well-grounded claims. 38 U.S.C.A. § 5107(a). If he has not, his claims must fail, and VA is not obligated to assist the veteran in their development. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The initial burden is on a claimant to produce evidence that a claim is well grounded. 38 U.S.C.A. § 5107(a); see Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 610-11. A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. There can be no valid claim without competent evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For a direct service connection claim to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. See Anderson v. Brown, 9 Vet. App. 542, 545 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). The service medical records show that in April 1942, the veteran sustained an intra-cranial injury; however, service medical records, including the report of the veteran's November 1946 examination for separation, are negative for evidence of tinnitus, TIAs, dementia, or a seizure disorder. Although the post-service medical evidence of record shows that the veteran has TIAs, dementia and seizure disorder, there is no indication in this medical evidence that any of the disorders were present in service or until many years thereafter or that any of the disorders are etiologically related to service head trauma or otherwise etiologically related to service. Moreover, the report of a July 1997 VA psychiatric examination reflects that the veteran was found to have senile dementia, TIAs, and seizure disorder which the examiner believed were unrelated to the veteran's military service. The evidence of a nexus between service and the current TIAs, dementia, and seizure disorder is limited to the lay assertions made by and on behalf of the veteran. Laypersons are not qualified to furnish an opinion concerning medical etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, the Board must conclude that these claims are not well grounded. In regard to the claim of entitlement to service connection for tinnitus, the Board notes that an April 1998 VA audiology examination report shows that the veteran's wife reported that the veteran complained of ringing in his ears from 1994 through 1997 and thereafter no longer complained of tinnitus. However, tinnitus was not diagnosed on this VA examination or on VA audiological examination in April 1997. Moreover, there is no other medical evidence showing that the veteran has been found to have tinnitus. The evidence of tinnitus is limited to the lay assertions made by and on behalf of the veteran. Laypersons are not qualified to render a medical diagnosis. Id. Therefore, the Board must also conclude that this claim is not well grounded. Finally, the Board notes that since the claims are not well grounded, VA has no duty to assist the veteran in the development of these claims. See 38 U.S.C.A. § 5107(a); Murphy, at 81-82. Moreover, a complex or controversial medical question warranting an opinion from an independent medical expert has not been presented. 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901(d). ORDER Service connection for tinnitus, TIAs, dementia, and seizure disorder is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals