BVA9504326 DOCKET NO. 93-08 339 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for a back disorder. 2. Entitlement to service connection for essential hypertension. 3. Entitlement to service connection for gout. 4. Entitlement to service connection for venereal disease with secondary sterility. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from June 1971 to June 1974. The veteran filed his initial claim for compensation benefits in May 1985. His VA Form 21-526 and a subsequent clarification of his pending claim in a VA Form 21-4138 in August 1985, show that he limited that claim to service connection for a back disorder. He did not make a formal or an informal claim for service connection for hypertension. The Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in a rating decision in September 1985, identified the pending issue as service connection for a back disorder and denied that claim. Further, while the 1985 rating action did not identify hypertension as a pending claim, it briefly discussed hypertension and characterized hypertension as a nonservice- connected disability. In a letter in September 1985, the veteran was informed by the RO that service connection for both a back disorder and hypertension had been denied. The veteran submitted additional evidence on the back claim in 1986, but did not timely pursue an appeal. In 1991, the veteran filed the claim on which the current appeal is based. The RO thereafter considered the veteran's claim for service connection for hypertension on the basis of whether he had submitted new and material evidence to reopen his claim following a final RO decision in 1985. Since the veteran had not actually filed a claim for service connection for hypertension at the time of the 1985 RO decision, it would be inequitable to charge him with a final decision at that time. Since the veteran has made arguments regarding the merits of this issue and has been informed of the pertinent law and regulations governing service incurrence, it would not be prejudicial for the Board of Veterans' Appeals (the Board) to consider this issue on a de novo basis. See Bernard v. Brown, 4 Vet.App. 384 (1993). This appeal is taken from a rating action by the RO in March 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran has argued in his VA Form 1-9, dated in August 1992, that he was first treated for gout in 1972 while aboard ship, that he has had treatment ever since and remains on medication for gout. His representative subsequently argued that the RO has not clarified that issue adequately and, in this and other issues, has not fulfilled a duty to assist the veteran in the development of the evidence. It is argued that the veteran had repeated episodes of venereal disease while in service and that it must be concluded that he developed a chronic infection with resultant sterility; the veteran avers in his VA Form 1-9 that he has had medical tests for sterility. The veteran states that he was treated for a back problems in service, and that he was also found to have hypertension while in service, and that his military records establish a basis for service connection. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen his claim for service connection for a back disorder; and that the veteran's claim for service connection for essential hypertension, gout and venereal disease with secondary sterility is not well grounded. FINDINGS OF FACT 1. The RO denied service connection for a back disorder in 1985. 2. Evidence submitted since 1985 does not tend to establish that a chronic back disorder is the result of service. 3. There is no evidence or medical opinion that the veteran developed essential hypertension, gout or venereal disease with secondary sterility in or proximate to service. CONCLUSIONS OF LAW 1. The decision of the RO in 1985 denying service connection for a back disorder is final; evidence submitted since then is not new and material, and the veteran's claim for service connection in that regard has not been reopened. 38 U.S.C.A. §§ 5107(a), 5108 (West 1991); 38 C.F.R. §§ 3.156, 20.1103 (1994). 2. The veteran's claim for service connection for essential hypertension, gout and venereal disease with secondary sterility is not well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS For reasons which will be discussed herein, the Board finds that there is no current, further obligation for the VA to assist in the development of the evidence pursuant to 38 U.S.C.A. § 5107. While the veteran's representative argues that further development is required, the Board does not find that acquisition of current clinical records would be productive to the issues at hand, and there is no indication that any other pertinent evidence is available at this time. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1994). 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) (1994). Service connection may be granted for disability which is the result of service-connected disease or injury. 38 C.F.R. § 3.310 (1994). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, l946, and essential hypertension or arthritis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service Connection: Back Disorder The RO denied the veteran's claim for service connection for a back disorder in 1985, and the decision became final. To reopen a claim following a final decision, the veteran must submit new and material evidence. 38 U.S.C.A. § 5108. When a veteran seeks to reopen his or her claim under [38 U.S.C.A.] § 5108, the Board must first conduct a two-step analysis. First, the Board must determine whether the evidence submitted since the previous RO decision is "new and material." Second, if the evidence is found to be new and material, the claim is to be reopened and the Board must then "assess the new and material evidence in the context of other evidence of record and make new factual determinations." Masors v. Derwinski, 2 Vet.App. 181, 185 (1992) (quoting Goodwin v. Derwinski, 1 Vet.App. 419, 425 (1991), and Jones v. Derwinski, 1 Vet.App. 210, 215 (1991)). In undertaking this "two-step" analysis, the Board must compare the evidence considered at the time of the prior denial of service connection with the evidence submitted since that time. Evidence Previously Considered When the claim was considered by the RO in 1985, of record were the veteran's service medical records which showed that on two occasions in March 1972, the veteran complained of back pain. On the first occasion, he said that 9 months before, his back problems had started with a possible back strain. On examination, there was full range of motion. He had mild muscle spasm on the right side in posterior flexion. Darvon and the use of a bed board were prescribed. The following week, the impression was mild lumbosacral muscle spasm. Medication was prescribed. Service medical records show no further reference to back complaints including on his separation examination in June 1974. At that time, he answered "no" to the question of whether he had ever had had recurrent back pain. On his initial claim for service connection for a back disorder, a VA Form 21-526, filed in 1985, the veteran said he had had back problems in service in 1972. He further reported that he had been treated for back problems in July 1969 (prior to service) as well as in October 1981 (more than 7 years after service). Also of record at the time of the RO's 1985 decision was a report of a VA examination in July 1985. At that time, the veteran reported having had back problems in 1971 probably at the time of heavy lifting, but denied any specific injury to the back. X-rays of the spine showed transitional vertebrae, L-5/S-1 and, on the oblique view, a possible defect in the pars interarticularis at that level on the right side. Very early spurring was shown at the superior anterior margin of L-5, and otherwise, the lumbosacral spine appeared normal. Tomograms showed unilateral spondylosis of L-5 on the right. The diagnosis was chronic lumbar strain. The RO concluded that while the veteran had had an episode of acute back pain in service, and was found to have a developmental transitional vertebra and beginning arthritis in 1985 (more than 10 years after separation from service), there was no evidence of a chronic back disorder in, proximate to or as a result of service. In 1986, the veteran submitted a statement from a private physician, S. Dubin, M.D., dated in September 1986, to the effect that the veteran had been his patient for the past couple of years for complaints of low back pain. In July 1986, the veteran, a VA employee, had been trying to subdue a patient who knew karate, and ended up being kicked in the back, elbow and shoulder. Dr. Dubin, who treated him over a period of several days, found no apparent back injury except pain. Dr. Dubin reported X-ray findings similar to those described on the 1985 VA examination. Evidence Since the 1985 RO Decision In 1991, the veteran attempted to reopen his claim with regard to the back disorder. The veteran submitted copies of an occupational injury report from 1986 as well as clinical records from Dr. Dubin starting in 1986 relating to treatment of back pain among other complaints. Also submitted was a report of another occupational injury in December 1989 while the veteran was helping to push a car in the parking lot and felt "something pop" in his back. The diagnosis was low back strain. Dr. Dubin's clinical records show that he continued to see the veteran in 1989 and 1990. December 1989 VA outpatient records show that he was seen for severe low back pain. Examination showed paravertebral tenderness, bilaterally, and tenderness over L-4/L-5. X-rays were negative for fracture. The diagnosis was lower lumbar sprain; bed rest, Robaxin, and Indocin were prescribed. The veteran submitted a statement from another physician, L. Peterson, M.D., received in February 1992, to the effect that he had seen the veteran for back complaints for the last 4 years. Additional VA clinical records were later submitted to show ongoing prescriptions including for pain after 1988. To successfully reopen a claim, there must be new and material evidence submitted. New and material evidence means evidence not previously submitted which bears directly and substantially upon a 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. 38 C.F.R. § 3.156(a). In general, the United States Court of Veterans Appeals has stated that the evidence must be relevant and probative of the issue at hand. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance (assuming its credibility) that there is a reasonable probability that the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95 (1993). The Board finds that the evidence submitted since the RO decision in 1985 regarding a back disorder, is not new and material. Much of the additional evidence is new, inasmuch as it is not cumulative of evidence considered in the 1985 RO decision. However, it is not material to the appellant's claim, as it is not relevant and probative of the issue at hand; that is, whether the veteran developed a chronic back disorder as a result of military service. The new evidence consists of treatment records dated many years after service and reflects back injuries that occurred many years after active duty. Evidence contemporaneous with the veteran's period of service or showing back problems in the interim from 1972 to 1985, would be of more probative value. The additional evidence does not tend to show that the veteran developed a chronic back disorder as a result of service or that arthritis was manifested within the first post-service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the absence of new and material evidence, this claim is not reopened. Service Connection: Hypertension, Gout and Venereal Disease with Sterility The appellant is also seeking service connection for essential hypertension, gout and venereal disease with secondary sterility. The claim has not been specifically approached as one of "gouty arthritis", nor has that diagnosis, as such, been offered. However, for purposes of comprehensive consideration, the Board will consider that aspect of the claim in relationship to all other pertinent allegations. In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A(n appellant) claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (l992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran's representative has argued that the VA has not fulfilled its responsibility to develop the claim and clarify the issue. In this regard, the Court has clearly indicated that in order for there to be a duty to assist, the threshold for a well grounded claim must be met, and that is a basic responsibility which is incumbent upon the veteran. Further, while the veteran has argued that he has various claimed disabilities and that they are related to service, the veteran is not medically trained and is not qualified to render such a medical opinion, and this opinion is not otherwise borne out by the evidence of record. See Espiritu v. Derwinski, 2 Vet.App. 492 (1993). History: Service In reaching its decision, the Board has taken into consideration the veteran's service medical records. Service records show no clinical findings or diagnosis of hypertension; blood pressure readings were 100/62, at entrance; 116/74 in October 1972; and 120/72 at separation. There were no inservice complaints, laboratory or other clinical evidence of elevated uric acid or gout (or for that matter, signs of gouty arthritis). On several occasions (in May 1972, June 1972, November 1972, September 1973, December 1973, and June 1974) the veteran was treated with antibiotics for urethral discharge and other symptoms attributed to gonorrhea. Several serological tests during service were negative. Gonorrhea was noted by history at separation in June 1974, but serology was then again negative and there were no clinical findings of residuals of venereal disease at separation. There is no evidence of sterility in the service medical records. Post-Service On 1985 VA examination, the veteran stated that he had been told in the past that he had hypertension, but that he had never taken medication. On examination, blood pressure readings were 158/96 (sitting), 150/94 (standing), and 160/100 (lying). Pertinent diagnosis was essential hypertension, not being treated. Laboratory testing showed that the veteran had uric acid counts of 10.7 mg/dl in July 1985 and 8.8 mg/dl in August 1985 (normal range shown as 3.9 to 9.1 mg/dl). Examination showed some weakness in his left extensor hallucis longus which the examiner attributed to episodes of "gout" in that joint. Dr. Dubin's clinical records and statement concerning his care of the veteran since 1986 do not refer to venereal disease with sterility, gout or hypertension. When seen as a VA outpatient for back complaints in December 1989, the veteran gave a history of gout for which he was taking medication. When seen for shoulder complaints by the VA in August 1991, an X-ray report showed an "x months hx of gout", but no evidence of orthopedic abnormality. A private physician, L. Peterson, M.D., reported in January 1992 that he had seen the veteran on several occasions over the past 4 years. The veteran was noted to have gout for which he was taking medication (Probenecid) and was said to have missed work because of that. Dr. Peterson also noted that the veteran was being treated with dietary therapy for hypertension. VA treatment records include lists of medications for which the veteran has been given prescriptions since 1988. The veteran and his representative contend that he has recently been seen for confirmed sterility by the VA; however, he has not submitted evidence or medical opinion to support the contention. There is no allegation that outstanding clinical data relates sterility to the recurrent in-service venereal infections some 20 years earlier. Several pages from a Merck Manual were submitted by the veteran's representative relating to the potential for sterility as a result of venereal infections. This evidence did not point to venereal disease as the sole cause of sterility. It remains that there is no evidence or medical opinion regarding the specifics of this case, i.e., that the veteran's alleged current sterility is the result of venereal infections of service origin. This conclusion is supported by the inservice clinical evidence of care in service, and more importantly, the lack of residuals shown at separation or showing of chronic residuals for many years thereafter. The first mention of this disability was on the veteran's 1991 claim. The first post-service evidence of hypertension was on VA examination in 1985, which was also the first time that gout was exhibited clinically. Absent diagnoses or other evidence or medical opinion that the veteran has essential hypertension, gout or chronic venereal disease with secondary sterility disabilities which are or may, in pertinent part, be presumed to be of service origin, the Board finds that the veteran's claim is not well-grounded pursuant to 38 U.S.C.A. § 5107. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). Since the veteran's claim is not well grounded and does not present a question of law or fact over which the Board has jurisdiction, the case is dismissed. Id. If the appellant were to submit medical evidence (such as an opinion) showing any of these disabilities were present in service, related to active duty, or present proximate to service, his claim would be well grounded. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Oct. 21, 1994). ORDER The claim for service connection for essential hypertension, gout and venereal disease with secondary sterility is not well grounded; in that regard, the case is dismissed. The claim for service connection for back disorder is not reopened; the case in that regard is dismissed. THOMAS J. DANNAHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.