BVA9501170 DOCKET NO. 93-16 163 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES Entitlement to service connection for a left knee disability. Entitlement to service connection for a right knee disability. Entitlement to service connection for asthma. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The appellant served on active duty from August 31 to October 21, 1953. By rating decision in January 1954, service connection for a right knee disability, asthma and residuals of a head injury was denied, respectively. The appellant was appropriately notified later in January 1954 and did not appeal. This appeal arises from an August 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Detroit, Michigan, that the prior decision was final and new and material evidence had not been received in order to reopen his claim. In February 1991, the RO denied entitlement to service connection for a left knee disability. Following a personal hearing before a hearing officer at the RO in December 1991, the hearing officer decided that the claims as to asthma and the right knee had been reopened on the basis of new and material evidence but remained denied despite the additional evidence in consideration with all the other relevant evidence of record. The appellant has claimed that a back problem, hearing loss, dental trauma, hypertension, and traumatic arthritis of multiple joints arose during service but the issues of service connection for these disabilities have not been prepared for appellate review at this time and are not inextricably intertwined with this appeal. Accordingly, the Board does not have jurisdiction of them at this time and such issues are referred back to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that he was treated during service for a serious head injury near the eye which required stitches and for a dislocated knee. He asserts that he developed a very bad case of asthma which required hospitalization. He avers that he was treated for serious head and knee problems in 1953 following service, including the issuance of a cane to walk and medication for dizziness and black-outs. Treatment by VA reportedly has been continuous. He asserts that he did not have wheezing and asthma for two years prior to service, as has been indicated to deny his claim in this regard. He maintains that his right knee and asthma conditions were aggravated by service. The appellant contends that RO has not attempted to obtain medical records from VA and private medical facilities which he has indicated support his claim. 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 appellant'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 preponderance of the evidence is against the claims to establish service connection for left and right knee disabilities and asthma; and that new and material evidence has not been submitted to reopen a claim to establish service connection for residuals of a head injury. FINDINGS OF FACT 1. All the evidence necessary for an equitable disposition of the appellant's claims has been obtained by RO. 2. A right knee disability and asthma, respectively, were clearly and unmistakably present prior to service, but the underlying conditions did not increase in severity during service. 3. A chronic left knee disability is not shown to have been present during service; nor to have resulted from any in-service disease or injury. 4. A January 1954 RO decision denying service connection for residuals of a head injury was unappealed following appropriate notice. 5. The subsequently received evidence as to residuals of a head injury is essentially cumulative of evidence previously considered and does not present a reasonable possibility, when considered in combination with the evidence previously reviewed, that it would change the outcome of the January 1954 decision denying service connection. CONCLUSIONS OF LAW 1. A right knee disability and asthma, respectively, clearly and unmistakably existed prior to service, thereby rebutting the presumption of soundness at entrance, and neither was aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107(a) (West 1991); 38 C.F.R. §§ 3.306(a),(b), 3.380 (1993). 2. A chronic left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 and 5107(a) (West 1991). 3. As new and material evidence has not been submitted, the requirements for a reopened claim of entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C.A. § 5108 (West 1991); Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulation 1008; effective January 25, 1936 to December 31, 1957. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The available service medical records show that no pertinent disability was recorded on the enlistment examination on September 1, 1953. On September 16, 1953, the appellant was treated for a cough. He stated that he had been coughing up blood for the previous 5 days. The physical examination revealed a few rales over the bronchial regions. On September 17, 1953, he stated that his throat was slightly sore and he had some difficulty taking a deep breath. His chest was reasonably clear. On September 18, 1953, he complained of generalized aches and pains. His chest was clear. His ears and throat were not inflamed. On September 24, 1953, it was indicated that a previous chest X-ray examination showed only slightly increased bronchovascular markings. Acute bronchitis, organism undetermined, was diagnosed. On October 2, 1953, the appellant was seen for complaints of difficulty breathing. He stated that he had had difficulty breathing with wheezing for about 2 years, with episodes of disability due to asthma. He also reported having had pre- patellar bursitis for about 4 months. Physical examination revealed definite pre-patellar bursitis on the right lower extremity. Definite asthmatic wheezing and musical rhonchi throughout the chest on auscultation were revealed. On October 7, 1953, he appeared before a Board of Medical Survey. He was found unfit for service due to perennial asthma with unknown allergen which was not incurred in line of duty and not aggravated by service conditions. He was separated on October 21, 1953. The available service medical records show no sign or symptom of any head injury or left knee disability. On the appellant's November 12, 1953, application for benefits, he indicated that he had never received any treatment by any civilian physician. In January 1954, the RO denied entitlement to service connection for a right knee disability and asthma on the basis that they pre-existed service and were not aggravated by service. Entitlement to service connection for residuals of a head injury was denied on the basis that none was shown and that no head injury was shown to have occurred during service. The appellant was properly notified and did not appeal. The appellant was hospitalized at Saint John Hospital in September 1987 for conditions including exacerbation of asthma and continuous cigarette abuse. He was 53 years old. He stated that about 2 1/2 weeks prior to admission he began to experience some mild shortness of breath and sternal chest pain and cough. He had become very distressed when his 48-year-old brother had died of a myocardial infarction, and had begun smoking cigarettes more frequently. He gave a past medical history of asthma with hospitalization for an attack approximately 2-3 months previously. He reportedly was on some unknown asthmatic medication which he said he had not taken for several months. He worked in construction sites and smoked cigarettes heavily, two packs a day. Physical examination revealed expiratory wheezes throughout all lung fields. No abnormality of the head or extremities was indicated. The head was described as normocephalic and traumatic. Chest X-ray examination on admission revealed somewhat prominent markings in the right perihilar area and minimal left pleural reaction. The initial impressions included atypical chest pain, bronchitis, and asthma versus chronic obstructive pulmonary disease (COPD). He was in the hospital for about a week. The exacerbation of asthma resolved. He was advised to discontinue cigarette use and to avoid dusty, allergic places. On a VA examination in April 1989, the appellant's complaints included asthma, left knee problems, headaches, and chest pain. His head, face and neck were negative on examination. X-ray examination of the chest showed minimal to moderate lowering of the hemidiaphragms suggestive of COPD and nonspecific, minimal increase and prominence of the lung markings. The lungs were free of any apparent active infiltrates. A pulmonary function test revealed normal spirometry. Chest expansion and breath sounds were slightly decreased. There were no rales or wheezes. No dyspnea was noted. No known allergy was indicated. Knee flexion was to 116 degrees, bilaterally. No knee problem or asthmatic condition was identified. The appellant was hospitalized by VA in March 1990 for four lid blepharoplasty for bilateral blephoptosis. COPD and asthma were diagnosed as well. VA outpatient records show that the appellant was seen for follow-up in February 1990. The lungs showed very minimal wheezes in the bases. He was to continue inhalers and medication for asthma. He was seen for left knee pain and swelling in June 1990 as well as for a two week history of headache. There were positive findings of effusion and tenderness with mild warmth of the knee. Extremity examination showed no other abnormality. In July 1990, history was indicated that he had been assaulted in February 1989. Asthma was noted. No facial deficits were detected. In October 1990 he complained of left knee swelling. Stable asthma and left knee pain were indicated. In a May 1990 statement, the veteran indicated that he was treated at the VA clinic in Detroit for "knee and eye/head trauma conditions in 1953" and continued treatment there and at the VA Medical Center in Allen Park since service. Request by the RO for all treatment records from 1953 yielded only those records referred to previously. A transcript (T.) of a personal hearing held before a hearing officer at the RO in December 1991 is of record. The appellant testified that he received a head injury with resultant incision over the left eye, broken teeth and ear trauma from having been beaten by 3 drill instructors; that headaches, spitting up blood, blackouts, and giving way of the knee resulted from that beating; and that he was treated at the base hospital. T. at 4. He expressed that he had never been treated for asthma before entering service and that he had received treatment for it in recent years. T. at 5. He testified that he did not recall having been treated for asthma during service. T. at 7. He recalled having been hospitalized during service and given stitches for incisions, antibiotics, ice packs, a walking stick and an Ace bandage on his knee for support; that he had to have teeth replaced; and that he was an outpatient at a VA hospital after he was discharged. A transcript (TT.) of a personal hearing held before a hearing officer at the RO in August 1992 is of record. The appellant testified that he suffered no maladies prior to service and that he participated in varsity basketball and football in high school. TT. at 3. He related that he had worked on the assembly line for an automobile manufacturer for three months prior to service without illness or injury and that he had had a normal employment physical examination. TT. at 7-8. He testified that his examination for the service was completely normal. TT. at 9. He recalled having been punched in the stomach and the jaw by drill instructors when he was not standing at attention in formation correctly. TT. at 10. He testified that, for punishment for eating candy, he was stomped on his back, ribs and knees and dragged around. TT. at 12. He recalled that he was punched in the mouth on another occasion. TT. at 13. He testified that he received another beating and kicking before discharge. TT. at 17. After getting out of service, he recalled treatment by VA for his knee, asthma, dizziness and fainting spells, and he was given a walking stick. TT. at 19. He reported having lost teeth from beatings during service. TT. at 20. He denied having indicated that he had had right knee bursitis prior to service and stated that, if he had, he would not have been accepted for service. TT. at 21. He testified that his left knee disability resulted from falls due to the right knee disability which began during service. TT. at 23. II. Analysis 1. Duty To Assist Section 5107(a) of title 38 of the United States Code provides that "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." 38 U.S.C.A. § 5107(a) (West 1991). In Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990), this Court defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [§ 5107(a)]." If the claimant satisfies the initial burden of setting forth a well-grounded claim, the VA is required by statute to assist the claimant in developing the facts pertinent to that claim. Zarycki v. Brown, 6 Vet.App. 91, 96 (1993). "Full compliance with the [statutory duty to assist] also includes VA assistance in obtaining relevant records from private physicians when the claimant has provided concrete data as to time, place, and identity." Olson v. Principi, 3 Vet.App. 480, 483 (1992). VA's "duty to assist" does not derogate from a claimant's burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded. The VA's "duty" is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role. . . . [T]he "duty to assist" is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim. In connection with the search for documents, this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim. Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (citations omitted). Giving effect to the language of [38 C.F.R. § 3.159], the following construct emerges which delineates the scope of the VA's duty to assist in obtaining . . . records [other than information furnished by other agencies under 38 U.S.C.A. § 5106]: if the claimant wants the VA to consider documents not in the possession of the Federal Government, the claimant must (1) furnish them to the VA, or (2) request the VA to obtain them, provide an appropriate release for such purpose, and demonstrate how the documents are relevant to the claim. Counts v. Brown, No. 91-1288, slip op. at 8 (U.S. Vet. App. May 27, 1994). In this case, we are of the opinion that all of the claims are plausible and, therefore, well-grounded. In this regard, we recognize that there is no evidence of head injury or of left knee injury in service apart from the veteran's testimony under oath. However, that testimony must be presumed to be true for the purpose of determining if a claim is well-grounded. See King v. Brown, 5 Vet.App. 19 (1993). In consideration of the foregoing case law and the evidence in this case regarding the documentary evidence that VA has requested in furtherance of the appellant's claim, we conclude that the VA has met its duty to assist the appellant in the prosecution of his claim. No more than the currently received records are forthcoming from the VA medical facilities in the Detroit area. Records from the Michigan Department of Social Services, Saint John Hospital and Saratoga Community Hospital have been requested and received. With respect to records from the Detroit Industrial Clinic and Detroit Receiving Hospital from 1952 to 1957, to which the appellant referred in his substantive appeal, he has reported treatment at these facilities, although not in connection with the current claim. Moreover, the claimed treatment began long after service, and the Board is unable to deduce from anything claimed that such records would be pertinent to the matters under consideration here. As to the employment examination at Chrysler prior to service, about which the appellant testified, he has conceded that this examination was more cursory than that made upon entry into service. Moreover, there is no indication in the record that he has attempted to get these records or has requested that VA obtain them. 2. Asthma According to the contemporary medical evidence, the in-service asthma was a disease of allergic etiology. It was first reported during service, about 30 days following entrance, but the appellant stated at the time that he had had asthma attacks for about 2 years. In connection with this claim, he has denied this. Nevertheless, on the basis of this contemporaneous history given by the appellant when he was treated for asthma during service, and which was accepted by military physician's, it can only be concluded that asthma clearly and unmistakably existed prior to service, thereby rebutting the presumption of soundness at entrance. Even though we find that asthma pre-existed service, this disease could be service-connected by way of aggravation, if the disease became chronically worse during service beyond the natural progress of the condition. However, this is not shown to be the case. First, the treating physicians in service concluded that the asthma was not aggravated by service conditions. Second, the asthmatic episode in service, which was principally manifested by wheezing, appears similar to pre-service symptomatology. As the Court held in Hunt v. Derwinski, 1 Vet.App. 292 (1991), at 297: "Given the plain meaning of 38 U.S.C.A. [§ 1153], and the purposes of the veteran's [sic] disability laws, we hold that temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." There is no medical evidence after service which sheds light on the question of whether the asthma increased in severity in service. The post service medical record simply shows that the veteran continued to receive treatment for asthma, and that he developed additional chronic respiratory disability many years later. There is no medical evidence of any relationship between the additional disorders and asthma. The attack of asthma during service must be considered symptomatic of the underlying disease process, and not evidence of aggravation of the disability caused by this disease. Accordingly, it cannot be concluded that asthma was aggravated by service. 3. Right Knee Bursitis Similar to the appellant's asthma claim, he now denies that pre- patellar bursitis of the right knee was present prior to service. However, the service medical evidence is clearly and unmistakably to the contrary, indicating that pre-patellar bursitis of the right knee which was identified on physical examination approximately five weeks after service entry had been present about 4 months. This is sufficient, in our view, to rebut the presumption of soundness at entrance. The medical history recorded at the time of pertinent physical examination during service clearly outweighs in probative value the current assertions made in the context of a claim for benefits. Service connection by way of aggravation of prepatellar bursitis of the right knee is not in order because no increase in the disability is shown to have occurred in service. The knee is not shown by credible evidence to have been injured in service. The current testimony as to right knee injury/ies in service has been considered, but, for reasons stated previously, is not considered to be as probative as the contemporary medical record. That record simply refer to the presence of the pre-service bursitis. 4. Left Knee The appellant contends that a left knee disability resulted from falls caused by his right knee disability during service, and has so testified. However, no falls or other injuries to the left knee are medically indicated. In fact, there is no cognizable evidence which relates any left knee disability, first shown many years after service, to any incident of service. The appellant claims that current disability is related to the claimed fall(s) in service, but there is no evidence of continuity after service and he is not considered competent in questions of medical causation. Grottveitt v. Brown, 5 Vet.App. 91 (1993). Accordingly, a left knee disability is not shown to be traceable to any service disease or injury, of the right knee, or otherwise. 5. Head Injury The prior decision in January 1954 is final. In order to reopen a previously denied claim, the veteran must present new and material evidence. 38 U.S.C.A. § 5108. In considering whether a claim may be reopened, a two-step analysis must be performed. First, the Board must determine whether the evidence is new and material. If, and only if, the Board determines that the claimant has produced new and material evidence is the claim deemed to have been reopened and the case must then be evaluated on the basis of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the Court defined the statutory terms "new" and "material." Evidence is "new" if it is not "merely cumulative of other evidence on the record." For evidence to be "material" it must be "relevant and probative of the issue at hand." Furthermore, not every piece of new evidence, even if relevant and probative, would justify a reopening because some evidence is of limited weight and thus is insufficient to justify a new hearing. There must be a reasonable possibility that the evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. The medical evidence received since the January 1954 decision includes additional service medical records, but these do not contain any additional fact serving to verify the appellant's ongoing allegation of in-service head trauma. The post service medical record also does not refer to in-service head injury or to symptoms which have been attributed to the claimed in-service head injury. This evidence is not material because it presents no reasonable possibility of an allowance. As to the appellant's assertions, including his testimony, this is essentially an elaboration on the assertion made previously, and, therefore, does not constitute new evidence. Accordingly, the appellant has failed in his attempt to reopen the claim because he has not submitted evidence which is both new and material. 6. Doubt When all of the evidence is assembled, [VA] is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The benefit of the doubt rule only applies where there is approximate equipoise in the relevant evidence for and against the claims, respectively. In this case, the preponderance of the evidence on every issue weighs against the claims. Accordingly, the claims must be denied, in their entirety. ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for asthma is denied. New and material evidence not having been submitted, a claim of entitlement to service connection for residuals of a head injury is not reopened and remains denied. NANCY I. PHILLIPS 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.