BVA9502320 DOCKET NO. 93-07 639 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether the application to reopen a claim of entitlement to service connection for residuals of a back injury is well grounded. REPRESENTATION Appellant represented by: Donald E. Bishop, Attorney WITNESSES AT HEARING ON APPEAL Appellant, his spouse, daughter, father, and sister ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from December 1966 to December 1969. The claims file contains a report of an April 10, 1989, Board of Veterans' Appeals (Board) decision denying entitlement to service connection for residuals of a back injury. The Board found, among other things, that no chronic disability attributable to an inservice low back strain was identified in service or for several years thereafter; and that current back disability, including degenerative arthritis and herniated discs, was first clinically shown many years after service. The current appeal arose from an October 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The RO determined that new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for residuals of a back injury. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for his variously diagnosed back disorder which can only be related to an injury he sustained in service. He states that during service he jumped off his boat to secure it, thereby injuring his back. He avers that his back has been hurting him on an intermittent basis ever since the injury. He argues that it has progressively worsened over the years due to hard physical work which has caused his back to deteriorate more rapidly. The appellant states that initially he did not seek frequent treatment; however, over the years, due to a worsening of his symptoms, he has had to consult various doctors and undergo surgery. 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 application to reopen a previously denied claim of entitlement to service connection for residuals of a back injury is not well grounded. FINDING OF FACT The application to reopen a claim of entitlement to service connection for residuals of a back injury is not supported by cognizable evidence showing that it is plausible or capable of substantiation. CONCLUSION OF LAW The application to reopen a claim of entitlement to service connection for residuals of a back injury is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 3.303(b), 3.307, 3.309 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board finds that the claimant's application to reopen a claim of entitlement to service connection for residuals of a back injury is not well grounded; consequently, there is no further duty to assist him in the development of his claim. The Board observes that section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence 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 initial burden, the Board finds that in addition to his claim not being well grounded, his appeal must be dismissed. In this regard, service connection may be granted for any disease or injury if it is shown to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. Arthritis, if not shown during service, may be presumed to have been incurred in service if this disorder is shown to be disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Finally, service connection may be granted for any disorder which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When a claim has been disallowed by the Board, that claim may not thereafter be reopened absent submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104. "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility, see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992)) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). 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. A claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and therefore cannot offer a medical opinion. 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. Turning to the veteran's claim for service connection for residuals of a back injury, the Board observes that the evidence of record reviewed by the Board prior to the April 10, 1989 decision consisted of the service medical records, post service medical documentation from VA and non-VA health care professionals, hearing testimony, and a lay statement. Service medical records show that the veteran was treated for back pain subsequent to lifting a heavy object in January 1968. Pain symptomatology was limited to the L1 and L2 vertebral body area without sciatic notch tenderness. A diagnostic impression of low back strain was provided to account for the veteran's symptomatic complaints. He improved and in a few days was returned to duty. Although the appellant reported a history of recurrent low back pain, his physical examination for separation from service disclosed no back abnormality. The post service medical records from a non-VA health care provider show that the claimant presented himself for treatment in February 1970, one day after sustaining an injury on the job. He reportedly was lifting blackboards at work. A physical examination was negative for any abnormalities and he was treated on a symptomatic basis. The appellant again sought treatment for a 2 to 3 week history of back pain in 1978. He was clinically assessed with lumbosacral sprain, and a possible disc syndrome at L4-5. A 1978 radiographic study was interpreted as revealing generalized degenerative and hypertrophic arthritis of the lumbosacral spine and additional degenerative changes. A January 1988 computerized axial tomographic study of the lumbar spine disclosed herniated disc material bulging posteriorly to the right of the midline at the L4-5 disc. Correspondence dated in May 1988 from a chiropractor shows he treated the veteran for back symptomatology at which time the veteran related an injury in service and reported having sustained additional injury in a car accident and as a result of diving. At a May 1988 VA examination the appellant reported having injured his back in service in 1967 while tying up a boat. His condition worsened in 1977 at which time he was told he had spurs in his back. He related having undergone back surgery on three occasions, the last surgery having taken place the previous February. The physical examination concluded in a diagnosis of old back injury, postoperative herniated nucleus pulposus of L4-5 with residuals, and degenerative disease of the lumbar spine. The veteran testified as to the circumstances surrounding his back disorder at an RO hearing held in October 1988. A friend of the veteran's, in a November 1988 statement, provided his knowledge and observations of the veteran's back problems when moving into a house in May 1970. The Board observes that the evidence submitted since the April 10, 1989, Board decision, consists of an April 1991 report of examination from a non-VA psychologist, excerpts from a private medical text pertaining to osteoarthritis and intervertebral discs, testimony provided at a RO hearing held in November 1992, a lay statement dated in September 1992, a duplicate of outpatient treatment reports from a non-VA health care provider, and a February 1988 computerized axial tomographic scan of the lumbar spine providing repetitious medical information already of record prior to the 1989 Board denial. The Board notes that the additional evidence submitted since the April 10, 1989, Board decision does not show that any competent individual or cognizable evidence has been presented linking the veteran's post service variously diagnosed back disorder to an injury sustained in service. Of particular interest is the statement submitted from a psychologist in support of the veteran's appeal. This non-VA psychologist provided unrelated information as to the veteran's mental health which has no bearing on the disability at issue. He merely noted that the veteran's history suggested a direct connection between back problems found in 1988 with the initial injury in 1967. The Board does not consider the psychologist to be competent medical authority to offer an opinion as to any causal relationship between the veteran's post service reported variously diagnosed back disorder and injury sustained in service. Espiritu. The excerpts from a private medical text in and of themselves do not provide a link between the veteran's post service variously diagnosed back disorder and injury sustained in service. The duplicative private medical evidence submitted was already evaluated by the Board prior to the 1989 decision. The hearing testimony presented by the veteran and members of his family is not competent in content as there was no medical health care professional, VA or non-VA, linking the postservice variously diagnosed back disorder to injury sustained in service. The lay statement from friends of the veteran merely provides their knowledge of his back difficulties. Pursuant to 38 U.S.C.A. § 5103, the Board informs the veteran that his claim would be well grounded if he presents competent evidence from either a health care provider or an authoritative medical text plausibly demonstrating that his post service variously diagnosed back disorder is etiologically related to service incurred injury. Upon receipt of such evidence, VA would then be able to reach the merits and determine whether or not service connection is warranted. Until that time, the appellant has failed to fulfill his obligation of submitting a well grounded claim. The Board recognizes that the veteran's claim is being disposed of in a manner different from that utilized by the RO. The Board must therefore consider whether the appellant 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 veteran'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 present determination. The Board observes that the RO disposed of the appellant's claim on the merits. In assuming that the claim was well grounded, the RO accorded him greater consideration than his claim in fact warranted under the circumstances. To remand this 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 the appellant. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49-747 (1992). ORDER The application to reopen a claim of entitlement to service connection for residuals of a back injury 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.