Citation Nr: 0006469 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 95-22 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for bronchitis. 3. Entitlement to service connection for alcoholism. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for pes planus and the residuals of a right lower extremity disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty for training from January to July 1958. 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). A hearing was scheduled before a Member of the Board on December 16, 1999. The veteran failed to attend. The veteran's representative prepared written argument in February 2000. Accordingly, the Board will proceed with the adjudication of the veteran's claim. FINDINGS OF FACT 1. The RO denied reopening the previously denied claims of entitlement to service connection for right lower extremity and foot disorders when it issued an unappealed determination in April 1992. 2. The additional evidence received since the RO's April 1992 denial is either cumulative or redundant and, by itself or in connection with the evidence previously assembled, is not so significant that it must be considered in order to adjudicate fairly the veteran's claim. 3. The claims of entitlement to service connection for bronchitis, asthma, alcoholism, and PTSD are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 4. Alcoholism is the result of the veteran's willful misconduct. CONCLUSIONS OF LAW 1. Evidence since the final April 1992 determination wherein the RO denied reopening the claims of entitlement to service connection for pes planus and a right leg or foot disability is not new and material, and the veteran's claims for those benefits have not been reopened. 38 U.S.C.A. §§ 5104, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20. 1103 (1999). 2. The claims of entitlement to service connection for bronchitis, asthma, alcoholism, and PTSD are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. A claim of entitlement to service connection for alcoholism lacks legal merit. 38 U.S.C.A. §§ 1110 (West 1991); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In the veteran's enlistment evaluation in December 1957, moderate pes planus was noted. In an April 1958 orthopedic evaluation, the veteran stated that he has had flat feet for "as long as he can remember." It was reported that with increased activities associated with basic training he had had some pain and swelling in the right knee. Clinical evaluation at that time revealed no ligamentous instability or patellar crepitus. Mild joint effusion in both feet with depression of the longitudinal arches was indicated. The veteran was placed on a temporary limited profile against prolonged marching more than two miles for a period of one month. In February 1958, the veteran's clubbed foot was noted. At this time, it was reported that the veteran had had this problem since a child. In April 1958, he was treated for a right knee sprain that began approximately one week earlier. No chronic condition was indicated. The veteran's active duty for training ended in July 1958. In a service medical report for Reserve training dated in May 1960, a scar to the right foot and the right side of the heel was indicated. However, no foot disorder, bronchitis, asthma, or psychiatric condition was noted. It was indicated that the veteran had undergone both a psychiatric and orthopedic consultation. In May 1960, the veteran had noted foot and knee arthritis. The veteran filed his initial claim for VA compensation in November 1960. At that time, he reported his active service to be from January to July 1958. He noted treatment of the right leg and foot in June 1959. Significantly, no reference was made to bronchitis, asthma, alcoholism, or a psychiatric disability. In December 1960, the RO attempted to obtain the records cited by the veteran in his November 1960 claim for VA compensation. In a December 1960 response, the hospital that the veteran had identified indicated that they had no record of the veteran as a patient at their hospital. In December 1960, the RO contacted the United States Army and asked to obtain the veteran's service medical records. The service medical records were obtained. However, the undersigned must note that several of the records appeared damaged by fire. Nevertheless, they also appeared to be complete. Service personnel records indicate that the veteran served on active duty for training from January to July 1958. The veteran was returned to the United States Army Reserve of Ohio to complete his remaining service obligation following his discharge from active service in July 1958. In a February 1961 VA orthopedic evaluation the veteran noted that he had trouble with his feet over the past three years. It was indicated he had developed pain in the right ankle and right knee and also in the right foot. It was also stated he had been born with a clubfoot on the right and had an orthopedic procedure performed while quite young for its correction. Physical evaluation revealed obvious atrophy of the right leg. In a March 1961 rating determination it was found that the veteran's condition of flat feet and the residuals of a clubfoot on the right with a right leg condition was not incurred in or aggravated by active service. At this time, it was determined that the right leg disability and flat feet existed prior to service and were not aggravated by service. The veteran received notice of this determination that month. In June 1989, the veteran requested an increase in his service-connected disabilities. In this regard, the Board must note that at that time (and at present), the veteran was service connected for no disability. The veteran again made no reference to bronchitis, asthma, alcoholism, or a psychiatric disability. Nevertheless, the RO evaluated the veteran's claim. Additional medical records were obtained. In August 1989, the RO made another attempt to obtain additional service medical records. The RO contacted the National Personnel Records Center (NPRC). At this time, the RO noted the veteran's active service to be from July 1958 to July 1961. The NPRC corrected the RO, noting the veteran served on active duty for training from January to July 1958. The NPRC stated that all available medical records had been sent to the RO. In a February 1990 report, a VA physician noted that a dictation of his examination had been made but had been apparently lost. The subsequent dictation was performed using the examiner's notes of the February 1990 evaluation. At this time, the veteran indicated that he hurt his right knee twisting it while doing physical therapy at Fort Jackson, South Carolina, in 1958 or 1959. Examination of the right knee at that time revealed some slight effusion, fairly good range of motion, and good circulation. The evaluator's impression noted a history of injury to the right knee with continuing pain and early arthritis. In March 1990 the RO denied entitlement to service connection for a right leg injury. The veteran was provided notice of this determination that month. The veteran filed an additional claim for VA compensation in February 1992. Once again, he made no reference to bronchitis, asthma, alcoholism, or any psychiatric disability. Another attempt by the RO to obtain additional service medical records from the NPRC was unsuccessful. In April 1992 the RO again denied entitlement to service connection for a right leg, right knee, and right foot disability. The RO noted the rating determinations in March 1961 and March 1990. In May 1994 the veteran stated that his "service-connected" disability had gotten worse. Once again, the undersigned must note that the veteran is currently service connected for no disability. Nevertheless, the RO once again reviewed the veteran's claim. In an April 1994 VA examination the veteran stated that he first began having painful feet when he entered the military. It was noted that (over the ensuing years) he had increased pain and dysfunction with his feet. He was wearing a right knee brace. X-ray studies revealed hammertoes involving the 3rd, 4th and 5th digits on the left. There was also a flattening of the plantar arch on the right. The evaluator's impression indicated flat feet. In February 1995 the RO found that new and material evidence had not been presented to reopen the previously denied claim. This determination was appealed to the Board. In an April 1995 notice of disagreement the veteran contended he was removed from the Army because of his right leg and right knee injury. He indicated that this condition was the result of his flatfoot. In June 1995 the veteran stated that he wished to file a claim seeking service connection for bronchitis, asthma, alcoholism, and PTSD. In his June 1995 substantive appeal he contended that his condition had been aggravated by service. Another attempt was made to obtain additional service medical records in September 1995, without success. In September 1995 the veteran noted health care providers who had treated his disabilities. In October 1995 the RO contacted the health care providers cited by the veteran in an attempt to assist him in the development of his claims. Additional medical records were obtained, including a November 1994 report from WZ, M.D. It was noted that this physician had evaluated the veteran's complaints regarding a three-year history of asthma. The evaluator's impression was of a chronic asthma condition with associated allergic rhinitis. Medical records were obtained from the VA Medical Center (VAMC) in Phoenix, Arizona. However, no reference to the veteran's active service was indicated. In October 1995 Dr. WZ's office indicated that they would not provide records unless the RO provided $50. The November 1994 report from Dr.WZ had been retrieved from another source. Nevertheless, in December 1995, the RO contacted the veteran and noted that Dr. WZ had replied that he would not release the veteran's records to the RO unless a $50 fee was paid. It was stated that VA had no authorized funds to obtain these records. As a result, the veteran was requested to obtain these records for his claim and submit them himself. At a hearing held before a hearing officer at the RO in February 1996 the veteran testified that he was treated at a dispensary in Fort Jackson, South Carolina, for his right lower extremity disability. He contended that this condition was aggravated by service. He also stated the March 1961 rating decision was initiated before he was released from active duty. He appeared to contend that his condition was so painful that it induced him to the point that he wanted to commit suicide. Submitted in February 1996 was a statement from the veteran noting his alleged stressors in service. He contended that he was sexually assaulted by a fellow serviceman who later received a dishonorable discharge. He contended that he had intrusive thoughts of this event on a regular basis. He noted that he had sought treatment for PTSD at the VAMC in Phoenix, Arizona, in or about 1994 or 1995. In this regard, the Board must note that medical records were obtained from the Phoenix, Arizona, VA Medical Center. These medical records fail to indicate that the veteran has ever been diagnosed with PTSD. In a May 1996 VA evaluation the veteran complained of nightmares that were related to a rape that he experienced while on active duty. He indicated that these nightmares began shortly after his discharge from the Army. Psychiatric evaluation revealed that his remote memory was spotty. His speech was rapid, difficult to follow and, at times, evasive. His thought process was considered to be generally spontaneous. Continuity of thought was goal-directed and sometimes rambling. He was diagnosed with alcohol dependence. In response to the RO's request to rule in or rule out a diagnosis of PTSD, the examiner stated that while the veteran had several personal stressors both from the trauma that was alleged to have occurred before the military and during his military service, it was stated that there was not "sufficient current medical symptomatology to warrant a diagnosis of [PTSD]." The RO denied the veteran's subsequent claims for bronchitis, asthma, alcoholism, and PTSD. He appealed these determinations to the Board. In his June 1997 substantive appeal, he requested a hearing before the Board. A hearing was scheduled in December 1999. He failed to attend. The undersigned must note that a hearing on the issue of service connection for bronchitis, asthma, alcoholism, and service connection for PTSD was scheduled at the RO in May 1997. The veteran also failed to attend this hearing. The veteran's representative prepared written argument in February 2000. It was contended that if a claim was potentially well grounded, the RO must develop the claim and assist the veteran under the pertinent sections of the VA adjudication procedural manual. I. Whether new and material evidence has been submitted to reopen claims of entitlement to service connection for pes planus and the residuals of a right lower extremity disability. Criteria & Analysis If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105; 38 C.F.R. § 20. 1103. A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and biding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material" evidence is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Court has held that VA is required to review for its newness and materiality only the evidence submitted by an appellant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Board must reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 7105(c) (West 1991) and Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) (1999) provides as follows: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. New evidence is evidence which (1) was not in the record at the time of the final disallowance of the claim, and (2) is not merely cumulative of other evidence in the record. Smith v. West, 12 Vet. App. 312 (1999); Evans v. Brown, 9 Vet. App. 273, 283 (1996). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its decision. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). New evidence means more than evidence which has not been previously physically of record. To be "new" additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). However, for the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The U.S. Court of Appeals for Veterans Claims (Court), in Elkins v. West, 12 Vet. App. 209 (1999), announced a post- Hodge three-step analysis to apply in determining whether to reopen previously and finally denied claims. Under the Elkins test, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Under Justus, the veteran's contentions are presumed to be true for the purposes of determining whether new and material evidence has been submitted. The Court has made clear, however, that a lay party is not competent to provide probative evidence as to matters requiring expertise derived by specialized medical knowledge, skill, expertise, training or education. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93-95 (1993); and Clarkson v. Brown, 4 Vet. App. 565, 657 (1993). As the Court has stated, "[l]ay hypothesizing, particularly in the absence of any supporting medical authority, serves no constructive purpose and cannot be considered by the Board." Hyder v. Derwinski, 1 Vet. App. 221, 222 (1991). Consequently, the veteran is not competent to associate his current right leg, right foot, or pes planus condition with his active service. Further, neither he or his representative is competent to state that this condition was aggravated by his active service. Most importantly, the lay argument that his current difficulties are associated with his service is merely cumulative of the evidence of record in previously denials of his claim. Consequently, these contentions are not new. The recently obtained medical evidence regarding the disorders at issue is likewise fundamentally cumulative. Consequently, the medical evidence is not "new" and cannot constitute "new and material evidence." The veteran essentially has the same disability he had prior to the RO's previous unappealed determinations in this case. Further, the veteran's testimony, generally a reiteration of previously made contentions, is not "new" and cannot constitute "new and material evidence." There has been no competent medical evidence submitted showing pes planus or the residuals of clubfoot with atrophy of the right leg were incurred in or aggravated by service. As a result, the veteran has provided no new and material evidence to reopen this claim. Unless the veteran provides new and material evidence to reopen a claim, the Board is bound by expressed statutory mandate not to consider the merits of the case. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). In Barnett, the United States Court of Appeals for the Federal Circuit concluded that 38 U.S.C.A. § 7104 does not merely "empower" but "requires" the Board to first determine whether new and material evidence has been presented prior to an adjudication of the merits of the claim. Thus, unless, and until, the veteran provides competent medical evidence that would provide a basis to reopen this claim, the Board may not unilaterally adjudicate the merits of a claim decided by the RO years before. Accordingly, the application to reopen the previously denied claims of entitlement to service connection for pes planus and the residuals of a right lower extremity disability remains denied. II. Entitlement to service connection for bronchitis, asthma, alcoholism and PTSD. Criteria & Analysis The threshold question is whether the veteran has presented evidence of well-grounded claims. The Court has defined a well-grounded claim as a claim which is plausible, that is meritorious on its own, or is capable of substantiation. If he has not filed such a claim, the appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The United States Court of Appeals for the Federal Circuit has affirmed the principle that if an appellant fails to submit a well- grounded claim, VA is under no duty to assist in any further development of the claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). In order for a claim to be well grounded, there must be a current disability that is related to an injury or disease that was present during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Case law provides that although a claim need not be conclusive to be well grounded it must be accompanied by evidence. A claimant must submit some supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Where the determinative issue is a question of medical diagnosis or medical causation, lay assertions cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). If no cognizable evidence is submitted to support the claim, the claim cannot be well grounded. The Court has held that, in general, a claim for service connection is well grounded when three elements are satisfied. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. With respect to the first prong of the Caluza analysis, a review of the medical records indicates that the veteran has never been diagnosed with PTSD. A VA evaluation obtained by the RO specifically found the veteran did not qualify to be diagnosed with PTSD. While the veteran appears to indicate that he has been treated at a VAMC for PTSD, a review of the medical records obtained at the request of the veteran fails to indicate that he has been diagnosed with PTSD. Accordingly, the veteran has failed the first prong of the Caluza analysis with regard to his claim for PTSD. The Board has considered the veteran's alleged stressors during his active service. However, the Board must find that the veteran's lay medical assertion that he has PTSD is neither competent nor probative of the issue in question. Consequently, as the veteran has not been diagnosed with PTSD, the claim for service connection for PTSD has been found to be not well grounded. Thus, there is no duty to verify these alleged stressors. With respect to the second prong of the Caluza analysis, a review of the service medical records fails to reveal any indication of treatment for bronchitis, asthma, or alcoholism during the veteran's active service. During the hearing held before a hearing officer at the RO, the veteran indicates that he has been informed that some of his service medical records may have been destroyed in a fire in the NPRC. The Board has noted that some of the veteran's service medical records appear to have been damaged by fire. However, the available service medical records, which appear complete, totally fail to note any indication of bronchitis, asthma, alcoholism, or PTSD. The veteran himself failed to file a claim seeking service connection for these disabilities until decades after his active service and following numerous applications for VA compensation. Accordingly, the Board finds that the veteran's claims have failed the second prong of the Caluza analysis. The veteran has provided some evidentiary assertions concerning these disabilities and their relationship to active service. However, while the veteran is competent to describe events or symptomatic manifestations of a disorder that are perceivable to a lay party, the Court has made clear that a lay party is not competent to provide probative evidence as to matters requiring expertise derived from the specialized medical knowledge, skill, expertise, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1994). With respect to the third prong of the Caluza analysis, nexus evidence, there is no competent medical evidence to associate bronchitis, asthma, alcoholism, or PTSD with the veteran's active service. If the service medical records do not show the claimed disability and there is no medical evidence to link a current disability with events in service or with a service-connected disability, the claim is not well grounded. With respect to the application of 38 C.F.R. § 3.303(b) (1999) for the purposes of well grounding a claim, the Board does not find that the veteran is competent to link any manifestations observable to a lay party to any underlying disability for which service connection is at issue. Thus, he cannot well ground his claims on the basis of continuity of symptomatology or chronicity. Savage, supra. With regard to the veteran's claim of service connection for alcoholism, the Board must note that service connection requires that the evidence establish that a particular injury or disease resulting in a chronic disability was incurred or aggravated by service, but no compensation shall be paid if the disability is the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). The law provides that drug and alcohol abuse cannot itself be service-connected. 38 U.S.C.A. § 105(a) (West 1991). Notwithstanding the regulations and statute cited above, the veteran is not competent to diagnose himself with a disability and then associate this disability to a service- connected disability or his active service. Espiritu, supra. No competent medical professional has diagnosed the veteran with alcohol abuse associated with his active service. Accordingly, for reasons noted above, the claim of entitlement to service connection for alcohol abuse is not well grounded in and of itself, and must be denied as a matter of law. In Chelte v. Brown, 10 Vet. App. 268, 271 (1997), the Court found that in the absence of competent medical evidence of a current disability and a causal link to service or evidence of chronicity or continuity of symptomatology, a claim is not well grounded. In this case, there is no evidence to associate these alleged disorders with the veteran's active service. Accordingly, the Board must find the claims to be not well grounded as a matter of law. In Robinette v. Brown, 8 Vet. App. 69, 77 (1995), the Court stated that if a claim alleges the existence of medical evidence that, if true, would have made the claim plausible, the VA would be under a duty under 38 U.S.C.A. § 5107(a), to advise a claimant to submit such evidence to complete the application for benefits. The Court also held, however, that the obligation exists only in limited circumstances where the veteran has referenced other known and existing evidence. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, the veteran appears to contend that additional medical records support his claim. However, the Board must note the RO's repeated unsuccessful efforts to obtain additional service medical records. The service medical records available totally and absolutely refute the veteran's claims, noting a preexisting pes planus condition and no indication of bronchitis, asthma, or PTSD during his active service. The Board must note that the veteran's contentions are not always clear. In any event, the Board specifically finds that neither it nor the RO is on notice of the existence of any evidence that exists that, if true, would make the veteran's claims for service connection plausible. 38 U.S.C.A. § 5103(a) (West 1991). Accordingly, the claims must be denied. The veteran's representative appears to contend that subsequent to the Court's decisions pertaining to this issue, VA expanded its duty to assist in developing evidence to include the situation in which the appellant has not submitted a well grounded claim. See Veterans Benefits Administration Manual M21-1, Part III, Chapter 1, 1.03(a), and Part VI, Chapter 2, 2.10(f) (1996). It appears that the representative contends that the M21-1 provisions indicate that the claim must be fully developed prior to determining whether the claim is well grounded, and that this requirement is binding on the Board. In Morton v. West, 12 Vet. App. 477 (1999), the Court held that the Manual M21-1 provisions pertaining to the development of claims prior to a finding of well groundedness are interpretive, in that they do not relate to whether a benefit will be allowed or denied, nor do they impinge on a benefit or right provided by statute or regulation. The Court found that the Manual M21-1 provisions constituted "administrative directions to the field containing guidance as to the procedures to be used in the adjudication process," and that the policy declarations did not create enforceable rights. The Court also found that interpretive provisions that are contrary to statutes are not entitled to deference, and that in the absence of a well grounded claim VA could not undertake to assist a veteran in developing the facts pertinent to the claim. The Board must find that it is required to follow the precedent opinions of the Court. 38 U.S.C.A. § 7269 (West 1991); Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Subsequent to the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet. App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. § 19.9 (1999), prior to determining that a claim is not well grounded. Consequently, the Board is not bound by an administrative issuance that is in conflict with binding judicial decisions, and the Court's holdings on the issue of VA's duty to assist in connection with the well grounded claim determination are quite clear. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.5 (1999). ORDER The veteran not having submitted new and material evidence to reopen the claims of entitlement to service connection for pes planus and the residuals of a right lower extremity disability, the appeal is denied. The veteran not having submitted well grounded claims of entitlement to service connection for bronchitis, asthma, alcoholism, and PTSD, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals