Citation Nr: 0000509 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 96-17 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been presented to reopen claims of entitlement to service connection for chronic back, skin and foot disabilities, and residuals of food poisoning. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from December 1941 to December 1945 with the United States Navy and from August 1949 to April 1950 with the United States Army. By rating action dated in May 1954, the Department of Veterans Affairs (VA) Regional Office, Cleveland, Ohio, denied entitlement to service connection for a back disability. The veteran was duly notified of the decision and did not submit an appeal. In October 1972, he submitted additional information to reopen his claim. In November 1972, the regional office again denied the claim. The veteran disagreed with the decision and was sent a statement of the case in April 1973; however, he did not submit a substantive appeal. In an April 1985 rating action, the regional office again denied entitlement to service connection for a back disability. The veteran appealed from that decision. In December 1986, the Board of Veterans' Appeals (Board) affirmed the denial of service connection by the regional office. In December 1989, the veteran again submitted additional information to reopen his claim for service connection for a back disability. He also claimed service connection for skin and foot disabilities and residuals of food poisoning. In a June 1990 rating action, the regional office denied entitlement to service connection for those conditions. The veteran appealed from those decisions. In June 1992, the Board of Veterans' Appeals held that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a back disability. The Board also denied entitlement to service connection for the other conditions. In October 1994, the veteran again submitted information to reopen the claims. In a September 1995 rating action, the regional office held that new and material evidence had not been submitted to reopen the claims of service connection for chronic back, skin and foot disabilities, and residuals of food poisoning. The veteran appealed from that decision. The listed issues are now before the Board for appellate consideration. In a rating action of October 1996 the veteran was granted service connection for post traumatic stress disorder (PTSD) and the disability was rated as 30 percent disabling. The veteran disagreed with the rating assigned and was issued a statement of the case in September 1998. No appeal thereafter is of record. Thus, that issue has not been perfected for appellate review and cannot be considered by the Board. 38 C.F.R. §§ 20.200, 20.202. FINDINGS OF FACT 1. By rating actions dated in May 1954, November 1972 and April 1985, the regional office denied entitlement to service connection for a chronic back disability. The veteran appealed from the April 1985 rating action. 2. In December 1986, the Board of Veterans' Appeals denied entitlement to service connection for a back disability. 3. In December 1989, the veteran submitted information to reopen his claim for service connection for a back disability. He also claimed service connection for chronic skin and foot disabilities and residuals of food poisoning. The claims were denied in a June 1990 rating action. The veteran appealed from that action. 4. In June 1992, the Board of Veterans' Appeals held that new and material evidence had not been submitted to reopen the claim of service connection for a chronic back disability. The Board also denied entitlement to service connection for chronic skin and foot disabilities and residuals of food poisoning. 5. In October 1994, the veteran submitted additional information for the purpose of reopening his claims. 6. In a September 1995 rating action, the regional office held that no new and material evidence had been submitted to reopen the claims of entitlement to service connection for chronic back, skin and foot disabilities and residuals of food poisoning. The veteran appealed from those decisions. 7. The evidence received since the June 1992 Board decision is essentially cumulative in nature or does not bear directly on the questions at issue. CONCLUSIONS OF LAW 1. The evidence received since the Board denied entitlement to service connection for chronic back, skin and foot disabilities and residuals of food poisoning in June 1992 is not new and material. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The June 1992 Board decision denying entitlement to service connection for chronic back, skin and foot disabilities and residuals of food poisoning is final. 38 U.S.C.A. § 7104(b) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to reopen a previously denied claim, new and material evidence must be submitted by the claimant. 38 U.S.C.A. §§ 5108, 7104(b). New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant and, which by itself or in connection with other 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 the case of Hodge v. West, 155 F.3d 1356 (1998), the United States Court of Appeals for the Federal Circuit modified the standard for finding whether recently submitted evidence is new and material. That case removed the standard which required that the new evidence raise a reasonable possibility that the new evidence would change the outcome of the matter. The evidence of record at the time of the June 1992 Board decision included the veteran's service medical records which reflect that when he was examined for entry into his initial period of service in December 1941, there was no reference to any of the conditions for which service connection is currently claimed. He was seen in October 1944 for blisters on his right foot and cellulitis of the right foot was diagnosed. He was returned to duty. When he was examined for separation from service in December 1945, the spine, skin and extremities were all reported to be normal. When the veteran was examined for entry into his second period of service in August 1949, it was indicated that there was no significant abnormality involving the spine or extremities. Second degree pes planus was noted. There was also no significant abnormality involving his skin. In February 1950, pityriasis rosea was noted. In March 1950, slight hallux valgus of the right great toe was reported. Later in March 1950, it was indicated that he had had a history of an injury to the right foot in 1945. When he was examined for release from active duty in April 1950, there were no skin conditions noted other than a tattoo and a scar on the hand which had existed prior to service. It was indicated that there was no significant abnormality involving the spine and extremities. Service department medical records pertaining to reserve training duty of the veteran and dated from 1957 to 1960, including reports of physical examinations conducted in August 1957 and July 1960 together with medical history reports completed by the veteran, do not reflect any complaints or findings regarding any of the claimed conditions. The veteran indicated on a medical history form in July 1960 that he had submitted a claim for compensation for a back injury. The veteran's initial claim for VA disability benefits was submitted in January 1954. He referred to a back injury, a left thigh condition and an ear condition. The veteran was examined by the VA in February 1954. His complaints included back pain. He stated he injured his back during physical training in 1949. On examination, there was no localized tenderness in the back and no muscle spasticity was found. Motion of the back was not limited. Straight let raising test was negative. An X-ray study of the lumbosacral spine was normal. The diagnoses included mild lumbosacral sprain. In a March 1954 statement, Francis Boyer, M.D., indicated that he had treated the veteran in December 1953 for back pain. It was indicated that at the age of 12 the veteran had been tackled and it had bent his back backward. Since that time, he had had some back trouble. Five or six months previously, he began having needle-like pain sensations in the low back. On examination, various findings were recorded, including punch tenderness, but no radiation of pain. The impression was ligamentous strain. In a February 1957 statement, James M. Muckley, M.D., indicated that the veteran had been seen on several occasions since April 1954 for chronic low back pain. The veteran gave a history of beginning to develop low back pain while in the Navy when he fell from a boom on his ship. On physical examination, various findings were recorded, including tenderness over the lumbosacral junction. In January 1973, the veteran indicated that, while on detached duty from his ship to Okinawa, a light plane had crashed in the bay and as they were attempting to rescue the crew, he sustained an injury to his back. December 1972 statements by John E. Howard and James W. Ellis, former service associates of the veteran indicate that, in 1945, while stationed on Okinawa, a small plane had crashed in the bay and while they were attempting to rescue the crew, the veteran had slipped and fallen and afterwards complained of pain involving his back. When the veteran was examined by the VA in January 1975, his complaints included constant back pain. He indicated that in 1944 he had struck his lower back against a boat engine. On physical examination, there was muscle spasm in the lower back. There was some limitation of motion of the lumbar spine. An X-ray study of the lumbar spine showed slight narrowing of the L4-L5 disc space. The diagnoses included degenerative disc disease at L4-L5. During the course of a hearing conducted in October 1985, the veteran related that, in 1944 following a football game, he had been tackled from behind and sustained a back injury. He also related that during a training exercise onboard ship he had slipped on the boom and fallen to the boat and again injured his back. He related that, on another occasion while attempting to rescue a pilot and co-pilot after their plane crashed in a bay, he had slipped and again injured his spine. The veteran related that he continued to have trouble with his back after his discharge from the Navy and during his Army service. The regional office later received private medical records reflecting that he was treated in February 1951 for a left ankle disability. In April 1954, he was treated for low back pain. It was indicated that at age 12 he had been struck on the back during a football game. He had also fallen from a boom on his ship in 1944 or 1945 and again injured his low back. Recently, he had noted severe pain in the low back. The records also reflect that, when he was seen in December 1955, he reported an injury to his right great toe while playing football in 1944. He reported several recurrences of pain in the metatarsophalangeal joint since that time. X-ray studies showed early arthritic changes referable to that joint. The record also included a copy of the February 1957 statement by Dr. Muckley reflecting that the veteran had been seen since April 1954 for chronic low back pain. An October 1985 statement by Edward A. Loughery, a former associate of the veteran, reflected that the veteran had injured his back in an accident during training and had been hospitalized for about one week. While onboard his ship during bad weather he had fallen from the boom into a boat tied below and reinjured the back. Records from the Aultman Hospital reflecting treatment of the veteran for a left ankle disability in 1951 were also received The regional office later received several private medical records reflecting treatment of the veteran for a cervical spine disability sustained in an on-the-job accident in 1973. The records reflect that the veteran also complained of pain involving the lumbar spine. The veteran testified at a hearing at the regional office in June 1991. He again indicated that he had sustained injuries to his low back during service. He related that he had sustained a skin disorder while swimming in a river during service and currently had a skin condition involving his arms and groin. He indicated that during service he had opened a can of K-rations and delayed eating the rations due to an enemy attack. The rations may have been in the sun for an hour and a half and after he ate them, he had stomach pain, vomiting and diarrhea. He had been treated for food poisoning and released after 4 or 5 days. The veteran related that he continued to have problems with his digestive tract after service and had finally been diagnosed as having diverticulitis. The veteran further testified that during a combat situation with the Japanese he had sustained a fracture of the great toe on his right foot. The fracture healed and later he was able to walk normally. During his service with the United States Army, they had examined the foot and indicated that he had a bunion. The veteran reported that he currently had difficulty with shoes, fitting shoes and walking. He had pain getting accustomed to any new shoe. The evidence that has been added to the record since the June 1992 Board decision includes copies of deck logs from the veteran's ship, the USS Pondera (APA 191), dated May 8 and May 9, 1945. The deck logs for May 8 reflect that the veteran and a number of individuals were transferred to a boat pool for temporary duty and further assignment. The deck logs did not make any reference to an injury to the veteran. The regional office later received a report of VA hospitalization of the veteran during February 1994. Diagnoses were made, including diabetes, hypertension, Parkinson's disease, and arthritis. VA outpatient treatment records dated in 1994 reflect treatment of the veteran for various conditions, including a psychiatric condition, cardiovascular condition and left shoulder disability. The veteran was hospitalized by the VA in February 1994 for evaluation and treatment of vertebral basilar insufficiency and transient ischemic attacks The veteran was afforded a VA psychiatric examination in August 1995. He included back problems among his complaints and indicated that he could hardly walk. He was also afforded VA psychological testing in August 1995. The regional office in October 1995 received service department personnel records of the veteran indicating that he had participated in various combat operations during World War II. In December 1995, the National Personnel Records Center advised the regional office that a search of sick call logs from the USS LST 677 produced no entries for the veteran. The veteran was afforded a VA orthopedic examination in March 1996. He reported an old injury to his back in 1944. He indicated that he had had a football injury during physical training in service. Since that time he had had chronic back problems. On physical examination there were tenderness and soreness of the low back with pain on motion. There was some limitation of motion of the lumbar spine. The diagnoses included residuals of an injury to the lumbosacral spine. The veteran was also afforded a VA general medical examination in March 1996. On examination of the skin, it was indicated that there was no dermatosis. On examination of the musculoskeletal system, it was noted that the veteran had a residual scar from a cervical laminectomy and fusion of the spine. On examination of the digestive system, the abdomen was flat and soft with no tenderness and no organomegaly. Diagnoses were made of history of hypertension, history of diabetes mellitus, Parkinson's disease and postoperative scars from spinal cord surgery and fusion. The veteran was also afforded a VA examination for aid and attendance or housebound benefits in March 1996. Various findings were recorded on the examination. Diagnoses were made of history of hypertension and diabetes, Parkinson's disease, history of cervical spine surgery and fusion and history of surgery of the left ankle. The regional office later received VA outpatient treatment records reflecting that the veteran was seen in 1996 for psychiatric problems and a cervical spine disability. The veteran testified at a hearing at the regional office in June 1996. He again provided testimony regarding his claimed back and foot injuries during service, the skin disorder during service and the episode of food poisoning. The veteran indicated that his current testimony regarding those matters was essentially the same as that provided at the 1991 hearing. The regional office later received office records from David Stachel, M.D., reflecting treatment of the veteran for various conditions from 1993 to 1996, including diabetes mellitus and a left shoulder disability. The VA also received VA outpatient treatment records reflecting treatment of the veteran for psychiatric problems in 1996. The veteran was afforded VA psychiatric examinations in January and August 1997. His complaints included problems with walking due to injuries to his back which he reported had occurred during service at a military base during a football exercise and game and another injury while stationed on Okinawa. Although some of the information submitted by the veteran since the June 1992 Board decision is new, such as the deck logs from his ship for 1945, the information is not considered to be material since it does not tend to establish the incurrence of any of the claimed disorders during the veteran's military service. The VA examinations in 1996 reflect the current presence of back problems; however, these examinations were conducted many years following the veteran's separation from military service and also would not tend to establish the inservice onset of any back problems. The veteran has conceded that the testimony he presented at the June 1996 regional office hearing was essentially similar to that provided at the 1991 hearing and thus would be cumulative in nature. The evidence received since the June 1992 Board decision is not considered to be significant that it must be considered in order to fairly decide the merits of the veteran's claims. It simply adds nothing of significance pertinent to the key issue-whether there is a relationship between the veteran's current problems and the injuries and incidents of service which he recalls. In view of the above discussion, the Board concludes that the additional evidence submitted since the June 1992 Board decision is not new and material and is insufficient to reopen the veteran's claims for entitlement to service connection for chronic back, skin and foot conditions and residuals of food poisoning. 38 U.S.C.A. §§ 5107, 5108; 38 C.F.R. § 3.156. Thus, the June 1992 decision by the Board is final. 38 U.S.C.A. § 7104(b). The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER New and material evidence has not been submitted to reopen the claims for entitlement to service connection for chronic back, skin and foot disabilities and residuals of food poisoning. The benefits sought on appeal are denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals