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Case History Document



Poor v. Brown
Entered By: Marc C Gabriel/LymeNetDate Created: 4-9-93
Document Type: Decision
Title: Case Decision for: Poor v. Brown
ROBERT G. POOR, APPELLANT, V. JESSE BROWN, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

POOR v. BROWN

No. 91-1708

UNITED STATES COURT OF VETERANS APPEALS

6 Vet. App. 314; 1993 U.S. Vet. App.


April 9, 1993, Decided

SUBSEQUENT HISTORY: [*1]

Released for Publication November 1, 1993.

JUDGES: STEINBERG

OPINIONBY: STEINBERG

OPINION: MEMORANDUM DECISION

STEINBERG, Associate Judge: The pro se appellant, veteran Robert G.
Poor, appeals from a September 13, 1991, decision of the Board of
Veterans' Appeals (BVA or Board) denying entitlement to service
connection for degenerative arthritis of the cervical spine,
Lyme disease, brain damage, and a psychiatric disorder, and
dismissing his claim for a total disability rating based on
individual employability. Robert G. Poor, BVA 91-29274 (Sept. 13,
1991). The Secretary of Veterans Affairs (Secretary) has filed a
motion for summary affirmance. Summary disposition is appropriate
in this case because it is one "of relative simplicity" and the
outcome is controlled by the Court's precedents and is "not
reasonably debatable". Frankel v. Derwinski, 1 Vet. App. 23, 25-26
(1990).

Pursuant to 38 U.S.C.A. @ 5108 (West 1991), the Secretary 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. @ 7104(b) [*2] (West 1991). In
considering claims to reopen previously and finally disallowed
claims, the Board must first determine whether the evidence presented
or secured since the prior final disallowance of the claim is "new
and material". See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
Evidence is "new" if it is not "merely cumulative" of evidence
already in the record; it is "material" if it is "relevant [to] and
probative of the issue at hand" and there is a "reasonable
possibility that the new evidence, when viewed in the context of all
the evidence, both new and old, would change the outcome." Colvin v.
Derwinski, 1 Vet. App. 171, 174 (1991). The determination as to
whether evidence is "new and material" is a question of law which
this Court reviews de novo under 38 U.S.C.A. @ 7261(a)(1)
(West 1991). See Masors v. Derwinski, 2 Vet. App. 181, 185 (1992);
Jones (McArthur) v. Derwinski, 1 Vet. App. 210, 213 (1991);
Colvin, supra.

The veteran served on active duty in the U.S. Army from June 1961
to [*3] March 1964. R. at 27, 36. He was involved in an
automobile accident in November 1963 (R. at 5), and service medical
records show complaints of "acute moderate neck pain", which was
assessed as acute muscle strain from whiplash, and negative X-ray
results. R. at 105. His separation examination reported no
disabilities, R. at 1-4, and contained a notation apparently signed
by him: "I am in excellent health." R. at 3.

The veteran's claims for service connection for brain damage and a
psychiatric disorder were denied by a prior final decision of the BVA
in August 1989. R. at 179-84. The newly submitted evidence in
support of these claims consists of a copy of a medical report,
bearing a November 1964 date, in which Dr. Victor Freeman, a
private psychiatrist, states a diagnosis of "Paranoid-type
disorder with indications of active psychotic features". R. at 178.
As the Board noted, this report is almost identical to a November
1972 report which was before the Board at the time of its August
1989 decision (see R. at 181), the only difference being the date of
the report. R. at 177. Further, although the copy of the report
dated November 1964 is illegible in part, the November 1972
report [*4] is completely legible and reveals Dr. Freeman's
statement that the diagnosis was based on his November 2, 1972,
examination of the veteran. Accordingly, the Court holds that the
November 1964 report is cumulative and thus not "new". See Colvin,
supra. Those claims thus could not properly be reopened on the
basis of the evidence submitted.

As to the veteran's claim for service connection for
degenerative arthritis, which he asserted was related to his
in-service automobile accident, that claim had been denied by a
Veterans' Administration (now Department of Veterans Affairs)
regional office in April 1987. The newly submitted evidence in
support of this claim consists of an unsigned July 1971 private
"Rehabilitation Survey" describing the veteran's then-current state
of health (R. at 194); a March 1967 doctor's bill for services
rendered in January and February 1967 (R. at 195); and private
radiological reports dated April 1988, December 1988, and February
1989. R. at 155, 159-60. The radiological reports relate only to the
veteran's current condition and do not establish an etiological
relationship between that condition and his period of active military
service. Therefore, [*5] in the absence of evidence relating his
degenerative arthritis to service, the veteran has not submitted
evidence which, when viewed in the context of all the evidence,
creates "a reasonable possibility" of a changed outcome. See Colvin,
supra; Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

As to his claim for Lyme disease, pursuant to 38 U.S.C.A. @
5107(a) (West 1991), "a person who submits a claim for benefits under
a law administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded".
(Emphasis added.) A well-grounded claim is "a plausible claim, one
which is meritorious on its own or capable of substantiation."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Although the claim
need not be conclusive, it must be accompanied by supporting evidence
sufficient to justify a belief by a fair and impartial individual
that the claim is plausible. See Tirpak v. Derwinski, 2 Vet. App.
609, 610 (1992). In this case, the veteran has failed [*6] to
submit medical evidence that he suffers from Lyme disease; his own
conjecture is not competent evidence. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992) (lay witness not competent to offer
evidence that requires medical knowledge).

Having not asserted any plausible basis entitling him to service
connection for Lyme disease, the veteran has failed to submit a
well-grounded claim under 38 U.S.C.A. @ 5107(a), and having failed to
submit new and material evidence to reopen his claims for service
connection for degenerative arthritis of the cervical spine, brain
damage, or a psychiatric disorder, those claims could not be reopened
under 38 U.S.C.A. @@ 5108, 7104(b). Therefore, the Board was not
required to carry any of the current claims to full adjudication, and
any error in the subsequent administrative proceedings as to those
claims is harmless. See Kehoskie v. Derwinski, 2 Vet. App. 31, 34
(1991); Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991); Thompson
v. Derwinski, 1 Vet. App. 251, 254 (1991). [*7]

Finally, as to the veteran's claim for a total disability rating
based on individual unemployability, the Board found that the veteran
is not service connected for any disability and dismissed his claim
pursuant to 38 U.S.C.A. @ 7105(d)(5) (West 1991), which provides that
the BVA "may dismiss any appeal which fails to allege specific error
of fact or law in the determination being appealed." Because the
veteran suffers from no service-connected disability, there is no
plausible basis for his entitlement to a total service-connected
disability rating based on individual unemployability under 38 C.F.R.
@ 4.16 (1992). Accordingly, that claim is not well grounded under
38 U.S.C.A. @ 5107(a), and the Board was not required to carry it to
full adjudication. See Murphy, supra.

Upon consideration of the record, the appellant's informal brief,
and the Secretary's motion, the Court holds that the appellant has
not demonstrated that the BVA committed error, in its findings of
fact, conclusions of law, procedural processes, consideration of the
benefit-of-the-doubt rule, or articulation of reasons or bases, that
[*8] would warrant remand or reversal under 38 U.S.C.A. @@ 7261,
7252, 5107(a), (b), 7104(d)(1) (West 1991) and the analysis in
Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Court grants the
Secretary's motion for summary affirmance and summarily affirms the
September 13, 1991, BVA decision.

AFFIRMED.

DATED: April 9, 1994

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