Citation Nr: 0004141 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-18 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a chronic cardiovascular disability to include coronary artery disease and hypertension. 2. Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for paranoid-type schizophrenia. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from August 1971 to April 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from September 1998 rating decisions of the North Little Rock, Arkansas, Regional Office (RO) which determined that the veteran had not submitted a well-grounded claim of entitlement to service connection for a chronic cardiovascular disability to include coronary artery disease and hypertension; denied that claim; and determined that the appellant had not submitted new and material evidence to reopen his claim of entitlement to service connection for paranoid-type schizophrenia. The appellant has been represented throughout this appeal by AMVETS. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appellant's appeal. 2. A chronic cardiovascular disability was not shown during active service or for many years after service separation. The record contains no competent evidence attributing the appellant's current cardiovascular disabilities to active service. 3. In a February 1992 rating decision, the RO denied service connection for paranoid-type schizophrenia. The appellant submitted a timely notice of disagreement with the adverse decision. The RO issued a statement of the case to the appellant and the accredited representative. 4. The appellant did not submit a timely substantive appeal from the February 1992 rating decision. 5. The evidence submitted since the February 1992 rating decision is either cumulative or redundant, or it bears directly, but not substantially on the specific matter under consideration, and by itself or in connection with evidence previously assembled is not so significant that it must be considered to decide fairly the merits of this claim. CONCLUSIONS OF LAW 1. The claim for service connection for a chronic cardiovascular disability to include coronary artery disease and hypertension is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The February 1992 rating decision denying service connection for paranoid-type schizophrenia is final. New and material evidence sufficient to reopen a claim for service connection for paranoid-type schizophrenia has not been presented. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Cardiovascular Disability Initially, it is necessary to determine if the appellant has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), the Court of Appeals for the Federal Circuit held that the VA has a duty to assist only those claimants who have established well-grounded claims. The United States Court of Appeals for Veterans Claims (Court) has clarified that the VA cannot assist an appellant in developing a claim which is not well-grounded. Morton v. West, 12 Vet. App. 477 (1999). Generally, a "well-grounded" claim is one which is plausible. The Court has directed that, in order for a claim for service connection to be well-grounded, there must be (1) competent evidence of a current disability; (2) proof as to incurrence or aggravation of a disease or injury in service; and (3) competent evidence as to a nexus between the inservice injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). Once an appellant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the appellant's initial burden has been met and the VA is obligated under 38 U.S.C. § 5107(a) to assist him in developing the facts pertinent to his claim. When a claim is determined to be not well-grounded, the VA does not have a statutory duty to assist him in developing the facts pertinent to his claim. However, the VA may be obligated under the provisions of 38 U.S.C.A. § 5103(a) (West 1991) to advise him of the evidence needed to complete his application. This obligation is dependent upon the particular facts of the claim and the extent to which the Secretary of the VA has advised the appellant of the evidence necessary to support a claim for VA benefits. Robinette v. Brown, 8 Vet. App. 69 (1995). The appellant has not alleged that there are additional relevant records which may be incorporated into the record. He is fully aware of the reasons for the denials and the deficiencies in the record. Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by wartime 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." 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) (1999). Where a veteran served continuously for ninety days or more during a period of war and cardiovascular-renal disease including hypertension becomes manifest to a degree of ten percent within one year 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. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (1999). A January 1972 Air Force treatment entry notes that the appellant complained of chest pain of a week's duration and shortness of breath. On examination, the appellant exhibited no cardiovascular abnormalities. An impression of "anxiety symptoms" was advanced. At his April 1973 physical examination for service separation, the appellant presented a one week history of chest wall pain of undetermined cause. On examination, the appellant exhibited a blood pressure reading of 114/70 mmHg and a normal heart and vascular system. A July 1997 VA hospital summary reveals that the appellant was diagnosed with hypertension. A February 1998 VA hospitalization summary report conveys that the appellant had a history of coronary artery disease since 1994. In his April 1998 informal claim for service connection, the appellant advanced that he initially experienced "heart problems" during active service which precipitated heart attacks in 1994 and 1997. In written statements dated in June and July 1998, the appellant related that he had "heart trouble" during basic training and at service separation; experienced chronic "heart trouble" thereafter; had been diagnosed with coronary heart disease by VA medical personnel; and suffered heart attacks in October 1994 and September 1997. At a July 1998 VA examination for compensation purposes, the appellant presented a history of chest pain since active service, a 1994 diagnosis of coronary artery disease, and heart attacks in 1994 and 1997. He denied a history of hypertension. The appellant's claims file was noted to be unavailable for review. The appellant was diagnosed with arteriosclerotic heart disease, coronary arteriosclerosis, and anginal syndrome. In his November 1998 substantive appeal, the veteran acknowledged that his inservice chest pain was reported to be of undetermined cause. He believed that it was actually cardiovascular in nature. The Board has reviewed the probative evidence of record including the veteran's statements on appeal. The veteran asserts on appeal that his inservice chest pain was an initial manifestation of his current chronic cardiovascular disabilities. While the veteran's service medical records do reflect that he complained of chest and chest wall pain, treating military medical personnel attributed the symptoms to anxiety and an undetermined cause. The report of the veteran's April 1973 physical examination for service separation identified no cardiovascular abnormalities. The first clinical documentation of the claimed disorder is dated in July 1997, some twenty-four years after service separation. The record contains no medical opinion attributing the veteran's current cardiovascular disabilities to active service. The veteran's claim is supported solely by the accredited representative's and his own statements on appeal. The Court has held that lay assertions of medical causation do not constitute competent evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Savage v. Gober, 10 Vet. App. 488 (1997). The Court has commented that: Just as the BVA must point to a medical basis other than its own unsubstantiated opinion (Colvin [v. Derwinski, 1 Vet. App. 174, 175 (1991)]), the veteran cannot meet his initial burden by relying upon his own, or his representative's, opinions as to medical matters. Robinette v. Brown, 8 Vet. App. 69, 74 (1995). There is no indication that either the veteran or the accredited representative is a medical professional. To the extent that the lay statements attempt to question a medical diagnosis or other clinical determinations as to the origins or existence of the claimed disorder, they may not be considered as competent evidence. Statements as to what the veteran may have been told by a physician during or after service, standing alone, are insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 4, 6 (1993). The report of the July 1998 VA examination for compensation purposes conveys that the veteran "has had problems with chest pain since he served in the military." The examiner did not indicate that he had reviewed the veteran's claims file. In reviewing a similar factual scenario, the Court has held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence" satisfying the Grottveit requirement. Such evidence cannot enjoy the presumption of truthfulness accorded by Robinette (as to determination of well groundedness) and Justus v. Principi, 3 Vet. App. 510, 513 (1992) (as to determination of whether evidence is "new and material" for purposes of reopening a claim), because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App 406, 409 (1995). As the record lacks competent evidence establishing that an etiological relationship exists between the veteran's current cardiovascular disabilities and active service or a cardiovascular-renal disease including hypertension became manifest to a compensable degree within one year of service separation, the Board concludes that the veteran's claim for service connection is not well-grounded. Accordingly, the instant claim is denied. 38 U.S.C.A. § 5107 (West 1991). The veteran is informed that if he is able to produce competent evidence attributing the claimed disability to active service, he should petition to reopen his claim. II. Doctrine of Doubt At the merits stage, there is weighing and balancing of the evidence of record. When addressing whether a claim is well-grounded, after establishing the competency of the evidence, the veracity of the evidence is accepted. The doctrine of doubt is not applicable where a claim is not well-grounded as there is no evidence to weigh or balance. III. Paranoid-type Schizophrenia Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). In reviewing an application to reopen a veteran's claim of entitlement to service connection, the Court has held that: [T]he Secretary must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a)(1998) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C. § 5107(a). Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C. § 5107(a) has been fulfilled. Winters v. West, 12 Vet. App. 203, 206 (1999), citing Elkins v. West, 12 Vet. App. 209 (1999). A. Prior Final RO Decision In a February 1992 rating decision, the RO denied service connection for paranoid-type schizophrenia based upon it determination that schizophrenia was not shown during active service or to a compensable degree within one year of service separation. The appellant submitted a timely notice of disagreement with the adverse decision. The RO issued a statement of the case to the appellant and the accredited representative. The appellant did not perfect a timely substantive appeal from the February 1992 rating decision. The evidence upon which the RO formulated its February 1992 rating decision may be briefly summarized. The veteran's service medical records indicate that he was seen for anxiety symptoms in January and August 1972. The report of the April 1973 physical examination for service separation relates that the veteran exhibited no psychiatric abnormalities. VA clinical documentation dated in February and March 1987 reflects that the veteran was diagnosed with schizophrenia. The report of an October 1987 VA examination for compensation purposes states that the veteran presented a history of psychiatric symptoms since approximately 1980. He was diagnosed with paranoid schizophrenia. B. New and Material Evidence Title 38 of the Code of Federal Regulations (1999) states, in pertinent part, that: "New and material evidence" means evidence not previously submitted to agency decision makers 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 the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the case. 38 C.F.R. § 3.156(a) (1999). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence submitted since the February 1992 rating decision includes service personnel records, VA examination and clinical documentation, and statements from the appellant. In his September 1997 informal application to reopen his claim for service connection, the veteran advanced that his treating VA psychiatrist had told him that he should have received a medical rather than a hardship discharge from active service. The remainder of the additional documentation pertains to ongoing treatment of his paranoid-type schizophrenia and nonservice-connected disabilities. In reviewing the additional documentation submitted into the record since the February 1992 rating decision, the Board observes that it is cumulative in nature and does not advance any competent evidence showing that paranoid-type schizophrenia originated during active service or within one year of service separation. The additional documentation merely reflects the veteran's belief that his schizophrenia arose during active service and his ongoing psychiatric treatment. The veteran's statements on appeal are essentially cumulative of his previous statements to the effect that he had sustained a chronic psychiatric disorder during active service. When the claim was previously denied, there was no competent evidence to connect the claimed disability to active service. The recent submissions have not cured this defect. The Court has held that if lay assertions as to medical causation will not suffice initially to establish a well-grounded claim, it necessarily follows that such assertions cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108 (West 1991). Moray v. Brown, 5 Vet. App. 211, 214 (1993). There is no indication that either the veteran or the accredited representative is a medical professional. The Court has further clarified that statements as to what the veteran may have been told by a physician during or after service, standing alone, are insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 4, 6 (1993). To the extent that the lay statements attempt to question a medical diagnosis or other clinical determinations as to the origins or existence of the claimed disorder, such statements may not be considered as competent evidence. In light of the foregoing, the Board finds that new and material evidence has not been submitted to reopen the previously disallowed claim of entitlement to service connection for paranoid-type schizophrenia. The RO's February 1992 decision remains final and is not reopened. That notwithstanding, the Board views its discussion as sufficient to inform the veteran and his representative of the elements necessary to reopen his previously denied claim, and to explain why his current attempt to reopen his claim fails. Graves v. Brown, 9 Vet. App. 172, 173; Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER Service connection for a chronic cardiovascular disorder to include coronary artery disease and hypertension is denied. The veteran's application to reopen his claim of entitlement to service connection for paranoid-type schizophrenia is denied. J. T. HUTCHESON Acting Member, Board of Veterans' Appeals