Citation Nr: 9901694 Decision Date: 01/22/99 Archive Date: 02/01/99 DOCKET NO. 94-24 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for residuals of mononucleosis, to include a respiratory disorder. 3. Entitlement to service connection for residuals of a left shoulder injury. 4. Entitlement to service connection for residuals of a right ankle injury. 5. Entitlement to a program of vocational rehabilitation under Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from October 1985 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issues of entitlement to service connection for residuals of a left shoulder injury and residuals of a right ankle injury, and entitlement to a program of vocational rehabilitation under Chapter 31, Title 38, United States Code, are the subject of the remand portion of this decision. FINDINGS OF FACT 1. The claim of entitlement to service connection for tinnitus is not plausible. 2. The claim of entitlement to service connection for residuals of mononucleosis, including a respiratory disorder, is not plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for residuals of mononucleosis, including a respiratory disorder, is not well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question is whether the veteran's claims of entitlement to service connection for tinnitus and residuals of mononucleosis, including a respiratory disorder, are well grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). There must be more than a mere allegation, the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Moreover, where a determinative issue involves a diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In order for a claim to be considered well grounded, there must be evidence both of a current disability and of an etiological relationship between that disability and service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3. 303 (1998). Service medical records, reports of VA examinations, and a March 1993 letter from a private osteopath have been associated with the record on appeal. The veteran has been afforded two personal hearings. She testified that she had received treatment from a VA medical center in San Antonio, Texas, in approximately 1988 and 1989. The record reflects that, in June 1990, records were requested from this facility. A response was received, enclosing records from 1989, and indicating that no other treatment records existed. The veteran has offered testimony that she has received private medical care, and a private doctor has diagnosed her as having asthma. However, she indicated that no opinion had ever been rendered with respect to whether the asthma was due to mononucleosis in service. She testified that she had never seen a doctor for tinnitus, and that she had never received any clinical opinion with respect to whether or not tinnitus was related to service. The Board concludes that all available service and post service treatment records, that are relevant to the issues decided herein, have been associated with the record on appeal. See Bell v. Derwinski, 2 Vet. App. 611 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Service medical records, including the report of the veteran's February 1988 service separation examination, are silent for complaint, finding, or treatment for tinnitus. A March 1986 service medical record reflects that the assessment was mononucleosis. The report of her February 1988 service separation examination notes that the veteran had mononucleosis in 1986. No hospitalization was required, and following treatment there was full recovery. There were no complaints relating to respiratory disability, and the report of the examination reflects that the veteran's lungs and chest were normal. The report of an April 1993 VA examination reflects a final diagnosis of history of mononucleosis, with no residual therefrom, and normal mononucleosis tests with no signs of cough or pharyngitis or loss of voice during the examination. Remaining post service medical records are silent for any diagnosis of tinnitus or residual to mononucleosis, including a respiratory disorder being residual thereto. In order for the veteran's claims of entitlement to service connection for tinnitus and residuals of mononucleosis, including a respiratory disorder, to be well-grounded, she must submit medical evidence indicating that she currently has these disabilities, and that they are related to her military service. There is no competent medical evidence that the veteran currently has tinnitus, or that she had tinnitus during active service. The veteran had mononucleosis during active service, but there is no competent medical evidence that she currently has disability residual thereto, including a respiratory disorder. The Board observes that the veteran has offered statements and testimony regarding her belief that she has tinnitus that had its onset during active service, and that she has disability residual to the mononucleosis she had during service. Her statements and testimony are presumed credible for purposes of this decision, including her statement that she has been diagnosed with having asthma. However, as a lay person, she is not qualified to establish a medical diagnosis or show a medical etiology merely by her own assertions, as such matters require medical expertise. See Grottveit and Espiritu. Even assuming the credibility of the assertion that she has been medically diagnosed as having asthma, there is no competent medical evidence that her asthma is related to service, nor is there an assertion that medical evidence exists that shows such relationship. The Board therefore concludes that, without the requisite competent medical evidence establishing that the veteran currently has tinnitus or residuals of mononucleosis, including a respiratory disorder, the claims of entitlement to service connection for tinnitus and residuals of mononucleosis, including a respiratory disorder, are not well grounded. Caluza. Although the Board has disposed of the claims of entitlement to service connection for tinnitus and residuals of mononucleosis, including a respiratory disorder, on a ground different from that of the RO, that is whether the claims are well grounded rather than whether she is entitled to prevail on the merits, the veteran has not been prejudiced by the Board's decision. In assuming that the claims are well grounded, the RO accorded the veteran greater consideration than her claims warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete her claims for disability compensation for the above discussed disabilities. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER Evidence of a well-grounded claim for entitlement to service connection for tinnitus not having been submitted, the appeal with respect to this issue is denied. Evidence of a well-grounded claim for entitlement to service connection for residuals of mononucleosis, including a respiratory disorder, not having been submitted, the appeal with respect to this issue is denied. REMAND During the veteran's personal hearing before a member of the Board in July 1998 testimony was offered with respect to treatment received from private health care providers. The testimony indicated that treatment had been provided relative to the issues of entitlement to service connection for residuals of a left shoulder injury and residuals of a right ankle injury. Authorizations for release of information from these providers were submitted. The record does not indicate that treatment records from these providers have been associated with the record on appeal. The veteran's claim for entitlement to a program of vocational rehabilitation under Chapter 31, Title 38, United States Code, was initially denied on the basis that her service-connected disability was evaluated as less than 20 percent disabling, and her claim had been received after November 1, 1990. She filed a notice of disagreement with this action in March 1993, and a statement of the case was issued in August 1993. She perfected her appeal relating to this denial. Since issues of entitlement to service connection remain pending, the Board is deferring a decision with respect to this denial of entitlement to a program of vocational rehabilitation under Chapter 31, Title 38, United States Code. Following a March 1994 notification to the veteran that since she had a 10 percent service-connected disability rating she must be determined to have a serious employment handicap in order to receive benefits under the vocational rehabilitation program, the veteran, in March 1994, submitted a notice of disagreement with that decision. In light of the above, the Board believes that additional development is required prior to further appellate review. Accordingly, the case is REMANDED to RO for the following: 1. The RO should contact the veteran and request that she provide the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her for any disability since service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran that are not currently of record. 2. The RO should review VA Forms 21- 4142, submitted at the time of the veteran's July 1998 personal hearing, and request medical records from Dr. Mark Weber and Dr. James Bash, from 1992 until the present, relating to any treatment provided the veteran for left shoulder or right ankle disabilities. 3. Then, in light of the additional evidence obtained pursuant to the requested development, the RO should readjudicate the issues on appeal. 4. If any benefit sought on appeal is not granted to the veteran's satisfaction, or if a timely notice of disagreement is received with respect to any other matter, both the veteran and her representative should be provided a supplemental statement of the case, that includes appropriate laws and regulations addressing the denial of entitlement to a program of vocational rehabilitation under Chapter 31, Title 38, United States Code, relating to a serious employment handicap, on all issues in appellate status and be afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran until she is otherwise notified. U. R. POWELL Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998). - 2 -