BVA9500659 DOCKET NO. 93-09 077 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a skin condition, claimed as jungle rot. 2. Entitlement to service connection for an upper respiratory disorder, to include recurrent pneumonia, colds, viruses, and influenza. 3. Entitlement to service connection for post-operative bilateral inguinal hernias. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for gout. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from September 1955 to March 1960. This appeal arises from a rating decision dated in September 1991 from the Houston, Texas Regional Office (RO) which denied entitlement to service connection for jungle rot, upper respiratory infections, a bilateral inguinal hernia, bilateral hearing loss, and gout. The case was received and docketed at the Board of Veterans' Appeals (Board) in April 1993, and is now ready for appellate review and consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he incurred multiple disabilities, including a skin condition claimed as jungle rot, recurrent upper respiratory infections, bilateral inguinal hernias, hearing loss, and gout as a result of his five years of service in the U.S. Marine Corps. He contends that his health has "gone steadily downhill" since discharge. 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 preponderance of the evidence is against grants of service connection for both jungle rot, and for recurrent upper respiratory infections. Moreover, after review of the record, we find that the claims for service connection for bilateral inguinal hernias, bilateral hearing loss, and gout, are not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. During service, the veteran was treated for a skin rash, diagnosed as neurodermatitis, which had been present for approximately six months. His separation examination was negative for any dermatological complaints or abnormalities. The presence of jungle rot was not noted at any time during service. 3. Additional evidence consistent with the presence of a skin disorder is not shown until October 1974, more than 14 years subsequent to service. 4. The veteran was treated during service in 1959 for an upper respiratory infection. Further evidence of pulmonary treatment is not shown until May 1990, when he sought emergency treatment for coughing and shortness of breath. He noted in a 1991 written statement that he had suffered from upper respiratory problems for the "last 3 years." 5. Treatment for symptomatology consistent with an inguinal hernia is not shown either during service, or for more than 23 years after service. Bilateral inguinal hernias were not diagnosed until April 1983, for which the veteran underwent bilateral herniorrhaphies in December 1983 and January 1984. No evidence has been presented which links his bilateral inguinal hernias with service. 6. At both entrance into and separation from service, the veteran exhibited normal bilateral hearing acuity. He has not presented any medical evidence which demonstrates that he currently suffers from bilateral hearing loss. 7. No complaints or findings consistent with gout were noted during service. He was treated for an episode of hyperuricemia in October 1974, in conjunction with hospitalization for treatment of alcoholism. In June 1988 the veteran was treated for pain and swelling of the left ankle and left great toe, with a previous history of similar symptoms both in 1981 and 1986. The diagnosis was "pseudogout." No medical evidence has been presented which links this condition to service. CONCLUSIONS OF LAW 1. A skin condition, claimed as jungle rot, was not incurred during service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b), (d) (1994). 2. An upper respiratory disorder, to include pneumonia, colds, viruses, and influenza, was not incurred during service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b), (d) (1994). 3. The claim for service connection for bilateral inguinal hernias is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim for service connection for bilateral hearing loss is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The claim for service connection for gout is not well- grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Jungle Rot and Upper Respiratory Disorder The Board notes that these claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). In the absence of chronicity at onset, a grant of service connection requires evidence of continuity of symptomatology demonstrating that a current disability was incurred in service. 38 C.F.R. § 3.303(b) (1994). Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d) (1994). A. Service Connection for Jungle Rot The veteran contends that he suffers from a recurrent skin condition, which he claims is "jungle rot," for which he has been treated repeatedly since service. Service medical records dated in June 1959 indicate that the veteran was treated for a skin rash located on both arms, which had been present for approximately six months. The diagnosis was "localized neurodermatitis" for which a topical medication was prescribed. We note, however, that no further manifestations or complaints associated with a dermatological condition are shown during the remainder of service, or upon service separation in March 1960. Moreover, further symptomatology consistent with an alleged chronic skin disorder is not found until October 1974, when the presence of some pigmented papular lesions, disseminated on the chest and back were noted. No diagnosis concerning the nature or etiology of these skin lesions was given. Additional treatment is not shown until January 1988, when he sought treatment for a two-month history of pruritic lesions on his right leg which continued to increase in size. He also stated that he had suffered from prior similar episodes of these lesions in the past. The diagnosis was "subacute nummular dermatitis" with a secondary infection, for which he was prescribed various medications. In a follow-up report, dated in March 1988, the examiner found that a rash had also developed on the veteran's forearms bilaterally, and around the "belt line." The diagnoses were nummular eczema, probable contact dermatitis of the bilateral forearms, and possible urticaria secondary to vitamin use. The presence of "jungle rot" has never been diagnosed, and there is no evidence that either the veteran's in-service, or more recent dermatological complaints, are actually associated with a form of "jungle rot." More importantly, however, we note that the evidence fails to establish that a chronic skin condition first arose in service and has been continuous since that time. After his service treatment in 1959, the veteran did not complain of any additional symptoms, and no findings or abnormalities were noted upon service separation. Furthermore, no further evidence of a dermatological abnormality is shown for more than 14 years after service separation, and no specific treatment for a skin condition is indicated until 1988, more than 25 years subsequent to service. Although the veteran has argued that he recurrently suffers from flare-ups of pruritic lesions on different areas of his body "every few years," no probative or credible evidence has been proffered which substantiates these contentions. We find that the absence of such evidence for so many years after service, coupled with the negative separation examination report, more than outweighs the veteran's unsupported allegations that he has suffered from a chronic skin condition since service. Inasmuch as a relative balance of negative and positive evidence is not present, no benefit of the doubt may be accorded to the veteran's claim. Therefore, entitlement to service connection for a skin condition, to include jungle rot, is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b), (d) (1994). B. Service Connection for an Upper Respiratory Disorder The veteran contends that he suffers from an upper respiratory disorder, manifested by recurrent episodes of pneumonia, colds, viruses, and influenza, which is attributable to service. A service medical record, dated in October 1959, notes treatment for complaints of a cold with a slight fever. Physical examination was negative. The diagnosis was an upper respiratory infection, and the veteran was prescribed Coricidin, and released. Upon service separation in March 1960, no additional complaints or respiratory abnormalities were found. Further treatment or symptomatology consistent with a respiratory disability is not noted until May 1990, when the veteran reported to the emergency room at the University of Texas Branch Hospital in Galveston, Texas, with complaints including coughing, shortness of breath, chest tightness and a sore throat. He noted that his wife had recently been treated for pneumonia. An x-ray revealed a "vague" focal lesion of in the left lower lobe of the lung, possibly suggestive of a tumor, or inflammatory "consolidation." The initial diagnosis was a left lower lobe nodule and an upper respiratory infection. A follow-up record dated in June 1990 found that his lung nodule had "practically resolved," with reported resolution of all symptoms and complaints. Physical examination found the lungs to be clear to auscultation and percussion. The x-ray impression was of "resolving left lower lobe pneumonia." Although the service medical records do indicate that the veteran was treated for an upper respiratory infection during service, we find no basis for an award of service connection for this disorder. Despite his contention that more recent episodes of respiratory symptomatology are attributable to service, the record is completely devoid of any treatment, complaints, or manifestations consistent with an upper respiratory condition for more than 30 years. During the time between his in-service incident in 1959, and his treatment for pneumonia in 1990, there is no medical evidence that he was treated for any colds, viruses, influenza, or related symptoms. The veteran did give a history in a January 1984 hospitalization record that he had suffered from pneumonia "many years ago." No other probative information was given, however, which would lend support to the veteran's claim that a chronic and continuous respiratory condition had been present since service. Furthermore, in a written statement received in July 1991, he stated that his upper respiratory problem had been present for only the "last 3 years." Although the veteran may believe that his more recent respiratory problems are in some way connected to service, he has submitted no probative and credible medical evidence which supports his allegations. Thus, his contention that his current disability is medically related to a single, in- service incident, constitutes lay speculation, to which we may accord little weight. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As the record contains no evidence demonstrating the presence of upper respiratory symptomatology either at service separation, or for more than 28 years after service, and as the veteran has himself stated that his current upper respiratory problems has been present for only the past few years, we conclude that a grant of service connection is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b), (d) (1994). II. Bilateral Inguinal Hernias, Bilateral Hearing Loss, and Gout In order for the Board to consider the appellant's claim, the appellant must submit evidence of that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). As stated previously, a well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim also requires more than just mere allegations that the veteran's service, or an incident which occurred therein, resulted in illness, injury, or death. The appellant must submit supporting evidence that would justify the belief that the claim is plausible. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Grivois v. Brown, 6 Vet.App. 136 (1994). A. Bilateral inguinal hernias Service medical records do not indicate that the veteran either complained of, or was treated for, any manifestations of bilateral inguinal hernias during service. Moreover, a hospitalization record dated in December 1983 from the University of Texas Branch Hospital notes that this condition was first discovered during a pre-employment physical examination in April 1983. The veteran subsequently underwent a left direct inguinal herniorrhaphy in December 1983, and a right indirect inguinal herniorrhaphy in January 1984. No medical evidence has been presented, however, which links the development of the veteran's bilateral hernias to service. The hospitalization reports associated with his herniorrhaphies noted no previous symptoms associated with the bilateral hernias prior to their diagnosis, and the veteran gave no history of any past medical problems. Inasmuch as service medical records do not show that the veteran suffered from bilateral inguinal hernias during service, and no medical evidence has been presented which links these conditions with events in service, we conclude that the veteran's claim for service connection for post-operative bilateral inguinal hernias is not well-grounded. See Montgomery v. Brown, 4 Vet.App. 343 (1993); 38 U.S.C.A. § 5107(a) (West 1991). B. Bilateral hearing loss The veteran contends that he "seems to have some hearing loss" which he attributes to service. We note, however, that both at service entrance and separation, his hearing acuity was found to be normal. Moreover, no medical evidence demonstrating the presence of hearing loss has been submitted in support of the veteran's allegations, and he acknowledges that he has never undergone any treatment for his claimed loss of hearing acuity. As noted previously, a claim for service connection requires more than mere allegations that a disability may currently exist. Some credible and probative evidence must be presented to support the veteran's assertions. See Tirpak v. Derwinski, 2 Vet.App. at 611; Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Inasmuch as the veteran has submitted nothing more than a speculative assertion that he currently suffers from bilateral hearing loss, we find that his claim for service connection is not plausible, and is consequently, not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). C. Gout Evidence contained in the service medical records does not show that the veteran was treated for gout, or any clinical manifestations or symptoms associated with that condition. In October 1974, he was hospitalized at a Department of Veterans Affairs (VA) facility in Houston, Texas, for acute and chronic alcoholism, at which time, the presence of hyperuricemia was found. The etiology of this condition was not given, however, nor was it indicated that this episode was consistent with a diagnosis of gout. In June 1988, the veteran sought treatment for pain, swelling, and warmth in his left ankle, as well as mild pain in his left great toe. He noted a history of severe pain and swelling in his left great toe both in 1981 and 1986, and claimed that these episodes had been diagnosed as "gout." Upon examination, there was effusion, warmth, and increased tenderness noted in the left ankle. Laboratory testing was positive for "pseudogout" with no intracellular involvement. Although the record indicates that the veteran may have suffered from this condition for more than a decade, there is no probative or credible medical evidence which has, at any time, linked this disability with service. Inasmuch as the service medical records are devoid of any findings or symptoms of gout, and the post- service records are wholly silent as to the etiology of the veteran's pseudogout condition, we find that the veteran has not presented a well-grounded claim for service connection. See Montgomery v. Brown, 4 Vet.App. at 346; 38 U.S.C.A. § 5107(a) (West 1991). In two recent decisions, Grottveit v. Brown, 5 Vet.App. 91 (1993), and Grivois v. Brown, 6 Vet.App. 136 (1994), the United States Court of Veterans Appeals (Court) has held that claims for service connection denied on the merits by the Board and, preceding the Board's decisions, by the Regional Office, were not well-grounded, and that "the [Board] and the Regional Office erred in not so deciding the claim." Grottveit, 5 Vet.App. at 92. The governing law, 38 U.S.C.A. § 5107(a) (West 1991), [R]eflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which -- as well- grounded -- require adjudication. . . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. Grivois, 6 Vet.App. at 139. The Court expressed its concern that a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he or she seek to reopen the claim because new and material evidence would be required to reopen. The Court deemed it appropriate, where the Board denied on the merits a claim that was not well-grounded, to "recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate." Grottveit, 5 Vet.App. at 93; Grivois, 6 Vet.App. at 140. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decisions of the RO. Id.; Grivois, 6 Vet.App. at 141. In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1993), not attach to the rating decision of September 27, 1991, as regards the veteran's claims for service connection for bilateral inguinal hernias, bilateral hearing loss, and gout. ORDER Entitlement to service connection for a skin condition, claimed as jungle rot, is denied. Entitlement to service connection for a recurrent upper respiratory disorder is denied. (CONTINUED ON NEXT PAGE) Well-grounded claims for service connection for a bilateral inguinal hernia, bilateral hearing loss, and gout having not been submitted, these claims are dismissed, and the rating decision of September 27, 1991, is vacated insofar as service connection for these disabilities was denied. JACK W. BLASINGAME 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.