BVA9504533 DOCKET NO. 93-12 819 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active service from October 1942 to November 1945. This appeal is taken from a Regional Office (RO) determination in January 1993 which, in pertinent part, denied entitlement to service connection for the disabilities at issue. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that he suffers from each of the disabilities at issue, and that they each are the result of his active military service. Additionally, the veteran asserts that he was afforded a VA psychiatric examination by a physician other than a psychiatrist, and that such physician was not qualified to provide a psychiatric diagnosis. 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(s). 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 Board is without jurisdiction as to the issues of entitlement to service connection for PTSD, hearing loss disability and tinnitus. FINDINGS OF FACT 1. The evidence of record does not provide a reasonable basis for finding that post service hearing loss disability and tinnitus resulted from service. 2. PTSD has not been demonstrated. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for PTSD is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for entitlement to service connection for hearing loss disability is not well grounded. 38 U.S.C.A. § 5107. 3. The claim for entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim for service connection for PTSD, hearing loss disability, or tinnitus. If he has not presented a well-grounded claim, the appeal must fail. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim. However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. A claimant would not meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Grottveit v. Brown, 5 Vet.App. 91 (1993). The Court has also held that claims that are not well grounded must be dismissed by the Board. The Court has stated that [a] veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); see Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). If a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In other words, the Court has held that, if a claim is not well grounded, the Board does not have jurisdiction over the question of whether the benefit sought on appeal is warranted. Boeck, at 17. Since a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, a claim that is not well grounded must be dismissed. 38 U.S.C.A. § 7105(d)(5) (West 1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1993). In the case of any veteran who engaged in combat with the enemy in active service with a military organization of the United States during a period of war, campaign or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such disease or injury may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991). I. PTSD There is a fundamental basis for denying the claim for service connection for PTSD. The appellant has not produced any evidence that would tend to show that PTSD currently exists. He apparently is of the belief that he is entitled to some sort of benefit simply because he had combat service. The Board notes that the records do show that he was awarded a combat citation, a Combat Infantryman Badge. However, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. As noted above, lay statements from the veteran's sisters, received in September 1992 are not sufficient to establish a well-grounded claim inasmuch as they are not competent to offer an opinion as to a medical diagnosis. Grottveit. In regard to the veteran's assertion that his psychiatric examination was inadequate, nowhere is it provided in law or regulation that opinions by examining psychiatrists are inherently more persuasive than that of other competent medical professionals. Williams v. Brown, 4 Vet.App. 270 (1993). In the absence of clinical proof of a present disability (i.e. PTSD) there can be no valid claim. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Accordingly, the claim for service connection for PTSD is not well grounded. 38 U.S.C.A. § 5107. Since a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, the appeal from the denial of such claim that is not well grounded must be dismissed. 38 U.S.C.A. § 7105(d)(5) (West 1991). II. HEARING LOSS AND TINNITUS In addition to the above cited law, where the veteran has had at least 90 days of active service, service connection may be presumed for sensorineural hearing loss disability (organic disease of the nervous system) if demonstrated to a compensable degree within one year of discharge 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 (1993). The evidence does establish that hearing loss disability and tinnitus are currently demonstrated. However, the disabilities were initially demonstrated too remote from service to be reasonably related to service, in the absence of demonstration of any evidence which would provide a reasonable basis for finding continuity of symptomatology. In this regard, the Board notes that it is regrettable that the veteran's service medical records are unavailable. However, in such instance, continuity of symptomatology may be established by secondary sources. Significantly, in the present appeal, the veteran has provided no clinical or lay evidence of continuity of symptomatology of hearing loss or tinnitus since service. Although the veteran is competent to report his observation of loss of hearing in service, his allegation of service incurrence is insufficient to establish a plausible basis for allowance of the claim, even where the veteran has had combat service. Indeed, in the veteran's application for disability benefits, received in June 1992, he indicated no post service treatment for any of the disabilities at issue. Further, in his initial claim for disability benefits, received in 1988, the veteran made no mention of the presence of hearing loss or tinnitus. Rather, he cited financial debts and being over the age of 65 as the bases for his claim. Significantly, the record is devoid of any mention of hearing loss disability or tinnitus until 1992, more than 45 years after the veteran's separation from service. The Board would have to engage in speculation to find that the current hearing loss disability and tinnitus are eitiologically related to service, in the absence of any evidence which would provide a reasonable basis for such finding. As such, the claims are not well grounded. Since a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, the appeals from the denial of such claims that are not well grounded must be dismissed. 38 U.S.C.A. § 7105(d)(5) (West 1991). ORDER Inasmuch as the veteran has not presented well-grounded claims for service connection for PTSD, hearing loss disability, and tinnitus, the appeals of the denial of such claims are dismissed. U. R. POWELL 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.