Material found herein should not be interpreted as legal advice.     Legal Disclaimer Notices

VSM Legal Precedence   (16 Aug 06)     Or the Armed Forces Expeditionary Medal (AFEM) that preceded the VSM This landmark decision sets aside the definition of "service in 'Nam" Over-turns any attempt by the VA to limit benefits to Vietnam-era Veterans NOTICE   (15 Sep 06 Update) .. take the above link to learn more about this landmark decision.

    The law or statutes is your key to success.     Understanding the law may require the assistance of a real lawyer or someone familiar with their meaning and how they are applied to veterans, especially under Title 38, CFR Part 4;   also Part 3, Adjudication, and Parts 0 - 17 TOC,
Parts 18 - 61, Part 19, VBA Appeals Regulations, and and Part 20, VBA Rules of Practice     GPO CFR Search Page, and GPO Order Form.     Questions or comments regarding this service? Contact the GPO Access User Support Team by Internet e-mail at GPOaccess@gpo.gov; by telephone at (202) 512-1530 or toll free at (888) 293-6498; by fax at (202) 512-1262.     Disclaimer:   Title 38 CFR online is as of August, 2003;   Order Version as of July, 2005.    

    By far, the premier legal research website, in the world.
    Bookmark this baby -- you will be back.
    Here is a sample key case to learn more about laws that affect veteran claims:   Moody v. Principi.     It is a backdating case, with other overtones, eg, informal claim(s) and issues that are also covered in my initial case, below, where there is a "secondary condition" to a service-connected injury or disease.     (You can never learn enough about secondary condtions because many injuries or illnesses will lead to them and you want your disability rating comiserate with same.)     When I was doing paralegal work with Family Court, I couldn't have lived without it -- just like the Internet.     More on the Law

Search Board of Veterans' Appeals for Case Decisions (Rulings)

"Evidence of Service in Vietnam"

  Useful Cases before the Veterans Board of Appeal

Court Case Docket Search - click here
Search for a Lawyer/Practitioner in your state
USCAVC     Note Time Limit from Board of Veterans Appeal (BVA)
625 Indiana Avenue, NW, Suite 900, Washington, D.C.   20004-2950
Case related matters only     Phone:   (202) 501-5970     Fax:   (202) 501-5848

    "Legal Precedence"   .. see if some of these apply to your claim.

§ 1110  Basic entitlement

§ 1111  Presumption of sound condition *

§ 1112  Presumptions relating to certain diseases and disabilities

§ 1113  Presumptions rebuttable

§ 1131  Basic entitlement

§ 1133  Presumptions relating to certain diseases

§ 5102  Application forms furnished upon request; notice to claimants 
         of incomplete applications

§ 5103A  Duty to Assist Claimants

§ 5103  Notice to claimants of required information and evidence

§ 5107  Benefit of the Doubt @ Your Advocate

§ 5109  Independent medical opinions

§ 7104  Jurisdiction of the Board

§ 7112  Expedited treatment of remanded claims


V.A. Regs (Part 3 - Adjudication)

Notice:  all VA Regulations (CFRs) are strict interpretation 
         of authority given in the U.S.C.
         re:  38 U.S.C. § 501   Rules and regulations   

§ 3.102  Reasonable Doubt. *

§ 3.303  Principles relating to service connection.   V.A. Reviewer

§ 3.307  Presumptive service connection for chronic, tropical 
          or prisoner-of-war related disease, or disease associated with exposure 
          to certain herbicide agents; wartime and service on or after January 1, 1947.

§ 3.309  Disease subject to presumptive service connection.

§ 3.313  Claims based on service in Vietnam. *

* Important Law or V.A. Reg Sections to also know

    All of the above, including the attorney disclaimer, is important to understand.     Case Studies is an "elaboration" of law references.     In other words,   we study cases for the under-lying law, or grounds of denial or approval, eg, Appellant Cotant (00-2382)   Serving in Thailand Case Studies.

    The purpose of this Section is to be a quick reference to both appeal cases, their findings and decisions and what statutes were referenced.     You should go to those statute references and review what the basis of law was in coming to a decision.     Please keep in mind that this section is a work-in-progress and the law reference links will come in time.     That was the supposed to be the "bad news" as it means you all will have to do your own "leg work" until I can get up to speed."

    The "good news" is I select or "pick my battles" carefully and the weekend of November 4th, 2005 -- just prior to our celebrated Veterans' Day, the V.A.R.O. (Regional Office) in Reno, Nevada threw me what they undoubtedly hoped to be a "unsurmountable bone."     Sorry.     They've got to do better than that.     You see, their job in making life and death compensation (survival) decisions for those that wore our uniform, well, they can only interpret the laws.     They (VARO) can not make them.

    .. please, please -- if you go away with only one (1) "carrot" -- this fact:   "they can only deny a veteran's claim with basis of law, grounds of law."
 
Case Study - Kidney Disorders, ie, CRF (Chronic Renal Failure)

    The case quoted, VBA Case No. 9421980.     Here is a World War II veteran, that was exposed to mustard gas, etc. and was denied his claim for service connection.     You might be saying to yourself:   "Well, Frank -- what the heck (cleaned up) does that have to do with my kidney case.     He lost -- didn't he?"     He sure did.     I can not deny that (pund intended.)     But, ".. his loss could be your gain."

    That's right.     The (Veterans Board of Appeal) Court denied his claim for a legal basis of law, grounds of law.     The veteran was represented by an attorney.     That doesn't matter if the veteran could not meet the burden of proof or evidence that the law so dictates.     Again, not what the Board members concluded, but the basis of law was not satisfied by the veteran nor the attorney that attempted to represent him.

    You have the link above, here it is again, VBA Case No. 9421980.     Now, here is the basis of law that was not satisfied, unfortunately:

    DECISION OF THE BOARD

    "The Board of Veterans' Appeals (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 veteran has not submitted evidence of well-grounded claims for service connection for a kidney disorder and an eye disorder."

    ADVOCACY LECTURE

    Now, for those that are not falling asleep out there, you should be jumping up'n down, swearing (if you will,) and saying:   "Frank -- that doesn't tell me anything that I shouldn't already know.     That is, that § 7104 just says the "Board has jurisdiction over these matters." .. "

    Right .. just my point .. these case rulings, if you will, are based upon authority and authority is spelled only one (1) way:   law.     In accordance with § 7104 they (the Board) has reviewed the case claim material (documents) and evidence.     In other words,   "This proceedings was perfectly legal and within their jurisdiction (of law.)"

    That was meant to be a lecture on better understanding legal jiberish.

    FINDINGS OF FACT

"1.     A kidney disorder was not shown in service,
      and post-service medical evidence shows no kidney disorder."

    ADVOCACY LECTURE

    Now, they are stating the fact that their findings, based upon fact,
      is a negative conclusion for this poor bastard, excuse my french.

    CONCLUSION OF LAW

"The veteran's claims for service connection for a kidney disorder
    and an eye disorder are not well grounded. 38 U.S.C.A. § 5107 (West 1991)."

    ADVOCACY LECTURE

    Wow!     "..conclusion of law"   .. got it?   I hope so.     I kinda wonder if his lawyer did.     Evidently, he (the attorney) had little experience in Veterans Affair legal claims or never did his homework, or (imho) he would ever never brought his case before the Board without properly being prepared because (if anything) -- he was not prepared.     Preparation includes, but is not limited to, making case references (sometimes referred to as "legal precedence" where the cases show legal grounds for your case.)

    Quoting § 5107 is found, in law, as to the claimant's responsibility (burden of proof) and in extenuating circumstances "the benefit of the doubt," per statute § 5107.

    In other words, ie, plain English:   "There is no grounds to support his claims.   And, the relevant law statute is § 5107 which was not satisfied by the claimant."

    Again, ".. his loss may be your gain."

    What follows is the answer(s) and the associated authority of law, for service connection of kidney disorder:

    REASONS AND BASES FOR FINDINGS AND CONCLUSION

"Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for a disability which is proximately due to or the result of service-connected disease or injury.     38 C.F.R. § 3.310 (1993).

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)."

    ADVOCACY LECTURE

    Let's take the rules of law that were quoted first, paragraph by paragraph:

38 U.S.C.A. § 1110   Basic entitlement.     The criteria for meeting is in the statute:   " For 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,"

Now, I will relate that to my case as an example:     Agent Orange in Vietnam is presumptive of contracting diabetes, type II, disease.     In contracting this disease considered service connection, and I will use the words in their findings paragraph:   "Service connection may be granted for disability resulting from disease .. incurred in or aggravated by active wartime service."     Therefore, the conclusion is:   "Service connection may be granted for a disability which is proximately due to or the result of service-connected disease"   (diabetes, type II.)

    "..proximately due to or the result of .." this service connected disease, diabetes.

    Diabetes is the No. 1 cause of kidney disorder.     If you do not believe it, do a search on the internet with keywords:   "cause" and "kidney" and you shall see listed (1) Diabetes and (2) Hypertension.     In so much as diabetes is the primary cause for both hypertension and kidney disorder, you must come to the reasonable (plausible) conclusion that kidney disorder is in proximity, ie, proximately to or the result of having diabetes.     Rephrased:     "Kidney disorder is the result of diabetes."

    MEDICAL EXPERT

    When you start speaking of "experts" in this way, you are referring to procedures in a court of law where those deemed expert in their field, here medicine, can make an expert opinion (rendering) for a case.     Get your primary care physician and/or renal care physician to diagnose your overall health.     I did.

    "The One-Two Punch"

    38 C.F.R. § 3.310 (1993).   Proximate results, secondary conditions.

    SECONDARY CONDITIONS

    Ooh .. that hurts .. result(s) of a secondary condition, ie, diabetes .. kidney disorder.

    But, please -- let's not leave it there.     Let's talk more (plain) English from the C.F.R. .. ready?

".. disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.   When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition."

    That was subpart (a) of the regulation; subpart (b) goes on to illustrate a proximaty example, ie, (b) Cardiovascular disease:

"Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service- connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service- connected amputation or amputations."

    Translation:   The amputations resulted in cardiovascular disease and therefore, the (resulting) disease is service connected.

    38 C.F.R. § 3.307   Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947.

    Not to change the subject, but here is the legal thinking as to "presumptive," ie, presumption that a disease is service connected, eg, diabetes, type II .. mell---itus.

    SUMMARY OF THE FIRST PARAGRAPH FINDINGS AND BASIS OF LAW

1)     You have a disease or injury associated with a service connected disease or injury

    Now, that's not algebra, but it is as simple as a = b when "a" is service connected and "b" is the result of "a."   <bs>

2)     And, Regulation 38 C.F.R. § 3.307 affirm that "b" is a secondary condition.

    Now, Paragraph #Two, revisited:

"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)."

    ADVOCACY LECTURE

    ".. may be granted (service connection) .. for any disease diagnosed after discharge, when all the evidence, including pertinent to service, established the disease was incurred in service."

    This attempt to repeat the above in plain English simply means, or should be dumbed:   "The granting paragraph."     Lawyers and courts love to restate the obvious and make it indistinguishable to the English language.

    CONTINUING WITH THE FINDINGS

"The threshold question to be addressed is whether the veteran has presented well grounded claims for service connection. If he has not presented well grounded claims, then his appeal must fail and there is no duty to assist him further in the development of his claims. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1992)."

    ADVOCACY LECTURE

    For whatever reasons, attorneys love using the word "threshold."     It's only a couple of syllables, but what the heck.

Translation:   the veteran does not have a well grounded claim and the claim must fail and the Board has not duty to assist this poor bastard.     Oh yeah, more legalese with a supa dupa statute reference to first, the U.S.C.,   38 U.S.C.A. § 5107(a) and second, a legal case based upon this decision.

    "More shit, just deeper.."

"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 supporting 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); Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992)."

    .. accompanied by evident .. must submit supporting evidence .. that justifies a belief .. conclusion (plausible.) .. oh yeah -- case(s) references

    That poor bastard didn't need that.     They have already screwed him and now they want to "bury" him .. with more legal crap???

    "Piled higher and deeper .."

"One element of a well grounded claim is a presently existing disability stemming from the disease or injury alleged to have begun in or been aggravated by service. Brammer v. Derwinski, 3 Vet.App. 223 at 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992)."

    Yes, we know -- one (1) element is presenting an existing disease stemming from, and alleged to have begun in or been aggravated by service, ie, service connection.

    By now, the poor bastard is really turned off and just wondering how much he owes his (freakin) lawyer that didn't prepare properly, ie, negligence he can not prove.

SUMMARY or CONCLUSION

This won't be you, right ?     You will be prepared and know before you proceed that you have a claim based upon evidence and know the law.     If you can't say that, step back and get your ass in gear.

    That was Lesson One under "Case Studies."     There will be lots more.     I do not stop at one (1) lousy case whether won or loss.     The internet is wonderful for research and I have just begun to fight.

    For more on this, I used keywords:   "v.a. kidney claims" to find VBA Case No. 9421980, a legal precedence.
 
SECONDARY CONDITION CASE W/AWARD     VBA Case No. 9412692

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the RO erred when it failed to grant secondary service connection for his claimed conditions. He avers that as a result of an injury to his back, and the subsequent surgery to correct the injury, he has developed scoliosis of the thoracic spine. Additionally, he claims that the residuals of the back surgery have shortened the length of his right leg, causing discomfort when he walks. As such, he states that he should receive VA benefits for these two conditions.

FINDINGS OF FACT

1.     All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction.

2.     The veteran currently suffers from mild scoliosis of the thoracic spine.

3.     The cause of the veteran's scoliosis cannot be etiologically disassociated from his service-connected back disability.

4.     Compensation and Pension Examinations conducted in June 1990, and again in July 1991, did not reveal unequal leg lengths; no medical evidence confirming the presence of this present disability has been previously offered.

CONCLUSIONS OF LAW

1.     Service connection for scoliosis of the thoracic spine is warranted.   38 C.F.R. § 3.310 (1993).

2.     The claim for entitlement to service connection for shortening of the right leg secondary to and as a result of the veteran's service-connected back disability is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.310 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.     Service Connection for Scoliosis of the Thoracic Spine

In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim on this issue. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id.

The veteran states that his diagnosed scoliosis is the result of his service-connected back disability.   Under 38 C.F.R. § 3.310 (1993), a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is established for a secondary condition, the secondary condition shall be considered as part of the original condition.

KEY LEGAL RIGHT OF CLAIMANT (APPELLATE)

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.
 
ANOTHER FINE CASE     VBA Case No. 9832924

THE ISSUES

1.     Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.     Entitlement to service connection for headaches, secondary to service connected bilateral hearing loss and tinnitus.

3.     Entitlement to service connection for dizziness, secondary to service connected bilateral hearing loss and tinnitus.

4.     Entitlement to service connection for nausea, secondary to service connected bilateral hearing loss and tinnitus.

5.     Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a skin condition, secondary to exposure to Agent Orange.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that the RO was incorrect in not granting the benefits sought on appeal. The veteran maintains, in substance, that he suffers from PTSD due to his experiences in the Republic of Vietnam during his tour of duty there. He also contends that he suffers from headaches, dizziness, and nausea, caused by his service connected bilateral hearing loss and tinnitus. He also contends that he has submitted new and material evidence to reopen his claim for service connection for a skin condition, secondary to exposure to Agent Orange. Therefore, favorable determinations have been requested.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained by the RO.

2. The veteran served in the Republic of Vietnam from January 1970 to April 1971.

3. No evidence has been submitted indicating that the veteran engaged in combat with the enemy.

4. The veteran’s claimed stressors cannot be verified.

5. PTSD was not shown or diagnosed during service; no psychosis was manifested to a compensable degree within one year after service; and there is no continuity of symptomatology of PTSD after service.

6. PTSD is not related to any incident of service.

7. The claims of entitlement to service connection for headaches, dizziness, and nausea, are not supported by cognizable evidence demonstrating that the claims are plausible or capable of substantiation.

8. In August 1994 the RO denied the veteran’s claim for service connection for a skin condition, secondary to exposure to Agent Orange.

9. Additional evidence submitted since the RO’s August 1994 decision consists of 1996 to 1997 private and VA outpatient treatment reports; statements from the veteran’s mother, brother, and a friend in March and May 1997; and April, June and August 1997 VA examination reports.

10. The evidence received since the August 1994 decision does not bear directly and substantially upon the issue under consideration, nor is it, by itself or in conjunction with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of the claim.

CONCLUSIONS OF LAW

1. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1998).

2. The veteran’s claim for service connection for headaches, secondary to service connected bilateral hearing loss or tinnitus, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).

3. The veteran’s claim for service connection for dizziness, secondary to service connected bilateral hearing loss or tinnitus, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).

4. The veteran’s claim for service connection for nausea, secondary to service connected bilateral hearing loss or tinnitus, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).

5. The August 1994 rating decision which denied entitlement to service connection for a skin condition, secondary to exposure to Agent Orange, is final. 38 U.S.C.A. § 7105(c) (West 1991);
38 C.F.R. §§ 3.104(a), 20.302, 20.304, 20.1103 (1998).

6. The evidence received since the August 1994 rating decision, denying entitlement to service connection for a skin condition, secondary to exposure to Agent Orange, is not new and material, and the veteran’s claim for that benefit is not reopened. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107, 5108 (West 1991); 38 C.F.R. §§ 3.156(a)(b), 3.306 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Service connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. § 3.303(a) (1998). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b).

The United States Court of Veterans Appeals (Court) has established rules for the determination of a well grounded claim based upon the chronicity and continuity of symptomatology provisions of 38 C.F.R. § 3.303(b). The Court has ruled that the chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court’s case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 493 (1997).

The initial question which must be answered in this case is whether the veteran has presented a well grounded claim for service connection. In this regard, the veteran has “the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded,” that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).

In order for a claim to be well grounded, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the inservice injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

A. Service connection for PTSD

Initially, the Board finds that the veteran’s PTSD claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he is found to have presented a claim which is plausible, in that a diagnosis of PTSD has been rendered. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a).

Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (1998). The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). See generally Cohen v. Brown, 10 Vet. App. 128 (1997).

The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in “combat with the enemy,” as established by recognized military combat citations or other official records, such as through the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the U.S. Army & Joint Environmental Support Group (ESG). If the VA determines that the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then the veteran’s lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required, providing that such testimony is found to be “satisfactory,” i.e., credible, and “consistent with the circumstances, conditions, or hardships of service.” See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. 3.304(f) (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran’s lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence which corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

However, as noted above, acceptance of the claimed stressors is but one of three elements needed to well ground a veteran’s PTSD claim. The veteran must still provide evidence of a clear and unequivocal diagnosis of PTSD, and medical evidence of a nexus between service and PTSD. Cohen, at 137.

The veteran’s service medical records are silent as to any complaints of, treatment for, or diagnosis of PTSD. No medical evidence has been submitted indicating that a psychosis was manifested to a compensable degree within one year of the veteran’s discharge from service. The veteran has submitted no evidence of treatment for PTSD since his discharge from service.

During an April 1997 VA PTSD examination the veteran reported serving in the Republic of Vietnam from January 1970 to April 1971; that his main duty was as a radio telephone operator (RTO) for an artillery battery. He also reported being a gunner and an assistant loader with Battery A, 2nd Battalion, 17th Field Artillery. He reported no wounds or injuries during his tour of duty there. As stressors he reported “certain inconveniences brought on by the war situation,” including minor problems with sleeping, not being issued weapons, schedules missed when airplanes broke down, losing clothing, not being able to find his company, and hearing “airbursts,” and machine gun fire, especially while on guard duty. The diagnoses were: Axis I, (1) PTSD, mild, with episodic depression, (2) alcohol abuse, episodic; Axis II, deferred; Axis III, deferred to medical evaluation; Axis IV, mild to moderate; Axis IV, [Global Assessment of Functioning (GAF), current, past year] 70/80. The examiner concluded that the veteran had “residuals” of PTSD, very mild and uncompromising to his current lifestyle. Significantly, the examiner indicated that the “[a]reas of concern are his marital and his alcohol difficulties[,] which are not entirely attributable or directly related to his experience in Vietnam. While there is an indication of continued although mild recurrence of post-traumatic stress, it is recommended that his current disability, i[f] there is any for PTSD, be retained[,] as there is no new or compromising situation that has affected his current functioning in his social, occupational or other areas in his life.” Assuming that the veteran engaged in combat with the enemy, or, in the alternative, that his claimed stressors could be verified, this diagnoses might be sufficient to support the veteran’s claim.

Initially, the Board notes that the veteran’s DA 20 indicates his duties while in Vietnam were as a connoneer, and that the veteran reported above that he was an RTO, a gunner, and an assistant loader for an artillery battery. While these duties could entail combat with the enemy, it is not entirely clear that the veteran did engage in combat with the enemy, and no records in his claims file so indicate beyond implication. That is, he was a cannoneer and assigned as an assistant loader, but his main duty was as a radio telephone operator. His combat action may have been “remote” or from a distance but this is not made clear by the veteran. The DA 20 and DD 214 do not indicate that he was awarded a Purple Heart, a Combat Infantryman Badge, or any other indicia of combat. Thus, the Board must find that the veteran did not engage in combat with the enemy in Vietnam. Accordingly, the presumptions of 38 U.S.C.A. § 1154(b) are not applicable, and the veteran’s PTSD stressors must be independently verified.

Regarding the issue of whether there is credible evidence that the veteran’s claimed stressors actually occurred, i.e., that they can be verified, the Board notes that the evidence in this case does not include any lay statements from other servicemen corroborating the veteran’s account of his claimed stressors. The veteran has failed to respond to the RO’s March 1997 letter requesting that he provide specific information concerning his claimed stressors (i.e., names, dates, etc.). He has failed to provide enough information to confirm his alleged stressors, and thus, has not provided sufficient stressor information for submission to the USASCRUR for verification. Accordingly, the veteran’s stressors were not forwarded to that entity for any further attempts at verification. The Board agrees with that determination.

However, even if the veteran did engage in combat with the enemy, and he very well may have, there was no link, at least one clearly established by the VA examination in April 1997, between his current psychiatric symptomatology and the claimed in service stressors or combat action.

As service connection for PTSD for a non-combat veteran requires credible supporting evidence that the claimed inservice stressor actually occurred, as noted above, and no such evidence has been submitted, the Board finds that the preponderance of the evidence is against the claim of service connection for PTSD. In the absence of a verified stressor, the diagnosis of PTSD is not sufficient to support the claim. See Cohen, supra. The reasonable doubt doctrine is not applicable in this case as the evidence is not evenly balanced. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that PTSD was not incurred in or aggravated by service.

B. New and material evidence to reopen a claim for service connection for a skin condition, secondary to exposure to Agent Orange

The August 1994 rating decision denying the veteran’s request for service connection for a skin condition became final when the veteran did not file a notice of disagreement within one year of the date he was notified of the unfavorable determination. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1998). Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed and a claim based on the same factual basis may not be considered. The exception to this is 38 U.S.C.A. § 5108, which states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or readjudicated by the VA. See 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.104, 3.156(a)(b), 20.302, 20.1103 (1998); Suttman v. Brown, 5 Vet. App. 127, 135 (1993).

The United States Court of Veterans Appeals has set forth a two-part analysis to be applied when a claim to reopen is presented. See Manio v. Derwinski, 1 Vet. App. 140 (1991). The first step is to determine whether new and material evidence has been received to reopen the prior claim. If so, then the second step, a de novo review of all of the evidence, old and new, is undertaken. “New” evidence is that which has not been previously submitted to agency decisionmakers and is neither cumulative nor redundant. See 38 C.F.R. § 3.156(a); see generally Hodge v. West, No. 98- 7017 (Fed. Cir. Sept. 16, 1998). “Material” evidence is that which bears directly and substantially upon the specific matter under consideration, 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. Id. Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992).

The August 1994 rating decision denied the veteran’s request for service connection for a skin condition on the basis that there was no medical evidence of a current skin condition. The evidence submitted at that time consisted of the veteran’s service medical records and a May 1993 VA Agent Orange examination report.

In light of Evans v. Brown, 9 Vet. App. 273 (1996), the evidence to be reviewed is that which has been submitted since the last final decision that disallowed the claim on any basis. In this case, the evidence submitted since the August 1994 decision shall be evaluated.

The evidence submitted since the RO’s August 1994 decision is comprised of 1996 to 1997 private and VA outpatient treatment reports; statements from the veteran’s mother, brother, and a friend in March and May 1997; and April, June and August 1997 VA examination reports.

Initially, the Board notes that while the additional evidence is new, in that it has not been previously submitted to agency decisionmakers, it is both cumulative and redundant as to the previously submitted evidence; it only contains the veteran’s contentions that he has had long-standing skin irritation, dating back to his tour of duty in Vietnam; it does not contain medical evidence of a current skin condition; or, in the case of the lay statements, makes only general observations as to the veteran’s overall health. Thus, the newly submitted evidence is also either not material, i.e., it does not bear directly and substantially upon the specific matters under consideration, the issue of whether the veteran has a current skin disorder, and whether that skin disorder is related to exposure to Agent Orange while in Vietnam, or it adversely bears directly and substantially upon those issues in that no medical evidence indicates a current skin condition. The additional medical evidence actually weighs against, rather than supports, the contentions of the veteran. The Board finds that the additional evidence, by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the veteran’s claim.

As to the veteran’s statements that he has a current skin condition which was caused by exposure to Agent Orange while in Vietnam, the Board finds that, as a lay person, the veteran is not competent to offer an opinion as to the diagnosis or medical causation of a skin condition. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (“If lay assertions of medical causation will not suffice initially to establish a plausible, well-grounded claim, it necessarily follows that such assertions cannot serve as the predicate to reopen a claim”). As such, their statements do not constitute new and material evidence. Id.

Accordingly, the Board concludes that the evidence submitted subsequent to the August 1994 final decision is not “new and material” as contemplated by 38 C.F.R. § 3.156(a), in that the new evidence, by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the veteran’s claim.. See 38 U.S.C.A. § 5108. The Board also points out that the "benefit of the doubt doctrine" applies to the adjudication of a claim on its merits, not to the preliminary question as to whether new and material evidence has been received to reopen a claim. See Martinez v. Brown, 6 Vet. App. 462 (1994). Thus, the veteran’s claim to reopen must be denied.

The Board notes that it is aware of no evidence which may prove to be new and material, but which has not been submitted with the application. See 38 U.S.C.A. § 5103(a); Graves v. Brown, 8 Vet. App. 522, 525 (1996).

II. Secondary service connection

As noted above, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Additionally, a disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for the degree of aggravation to a non-service connected disorder which is proximately due to or the result of a service connected disorder. Allen v. Brown, 7 Vet. App. 439, 448-50 (1995).

The initial question which must be answered in this case, however, is whether the appellant has presented a well grounded claim for service connection. A claim for secondary service connection, like all claims, must be well grounded. See Reiber v. Brown, 7 Vet. App. 513, 516 (1995). In this regard, the appellant has “the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded;” that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Tirpak, supra.

In the present case, the veteran has again failed to submit medical evidence of a current disorder. While he has contended that he suffers from nausea, dizziness, and headaches due to his service connected bilateral hearing loss and tinnitus, no medical evidence of these conditions has been submitted. Also, in the August 1997 VA examination report the examiner specifically noted that, in his opinion, the veteran’s problems with headaches, dizzy spells, and nausea were “most likely” not related to his bilateral hearing loss or tinnitus, as the examiner was “not aware of hearing loss and tinnitus causing these problems.”

The relationship of the veteran’s service connected disabilities and non-service connected disorders is not susceptible to informed lay observation, and thus, for there to be credible evidence of such a relationship, medical evidence is required. See, e.g., Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Reiber v. Brown, 7 Vet. App. 513, 516 (1995); Proscelle, 2 Vet. App. at 633.

A well grounded claim must be supported by evidence, not merely allegations. See Tirpak, supra. As previously noted, a well grounded claim for secondary service connection requires medical evidence of a current disability, and a nexus between a non-service connected disability and that current disability, in order to be plausible. In the absence of such evidence, the veteran’s claim for service connection for headaches, dizziness, and nausea, secondary to his service connected bilateral hearing loss and tinnitus, must be denied as not well grounded.

The Board recognizes that this portion of this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran’s secondary service connection claim on the merits, while the Board has concluded that the claim is not well grounded. However, the Court has held that “when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well grounded analysis.” See Meyer v. Brown, 9 Vet. App. 425, 432 (1996).

The Board is aware of no circumstances in this matter that would put VA on notice that relevant evidence may exist, or could be obtained, that, if true, would make the veteran’s secondary service connection claim “plausible.” See generally McKnight v. Gober, 131 F.3rd 1483, 1484-85 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996).

III. Conclusion

The veteran’s attorney representative, in various statements submitted during the course of this appeal, has propounded a series of procedural objections, most essentially concerning the duty to assist found in 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.159. Section 3.159, being somewhat more explanatory than § 5107(a), provides that although it is the responsibility of any person filing a claim for a benefit administered by VA to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded, the Department of Veterans Affairs shall assist a claimant in developing the facts pertinent to his or her claim. This requirement to provide assistance shall not be construed as shifting from the claimant to VA the responsibility to produce necessary evidence. Accordingly, absent a well grounded claim there is no duty to assist. The United States Court of Appeals for the Federal Circuit, in the recent case of Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), held that only a person who has submitted a well grounded claim can be determined to be a claimant for the purpose of invoking the duty to assist provisions of 38 U.S.C.A. § 5107(a). See Epps, p. 1468-69.

Hence, all of the representative’s arguments concerning the duty to assist, such as a request for new VA examinations due to alleged deficiencies such as the lack of an etiology opinion, the lack of the examiner having the veteran’s claims file, the lack of compliance with the 38 C.F.R., Part 4, Schedule of Rating Disabilities, requests for independent advisory or medical expert opinions, the inadequacy of any VA examinations, the failure to provide nexus or etiology opinions, or affording the benefit of reasonable doubt, which have been proffered in regard to the veteran’s claims, are not only without merit, as the veteran has failed to submit well grounded claims, but, in certain cases are applicable to increased evaluation claims rather than service connection, secondary service connection, or new and material claims. The Board notes that none of the veteran’s claims on appeal are increased evaluation claims.

In addition, 38 C.F.R. § 3.327 provides that in general, reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. § 3.328 provides that, when warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA.. Approval shall be granted only upon a determination by the Compensation and Pension Service that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion. A determination that an independent medical opinion is not warranted may be contested only as part of an appeal on the merits of the decision rendered on the primary issue by the agency of original jurisdiction. Hence, contra to the representative’s request, the denial of his procedural and “duty to assist” contentions is included within the present appeal, and does not require a separate notice of disagreement, substantive appeal, statement of the case or supplemental statement of the case.

The Board finds that no