Citation Nr: 0002053 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-04 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for an eye disorder including optic atrophy associated with malnutrition. 2. Entitlement to service connection for hypertensive cardiovascular disease with congestive failure. 3. Entitlement to service connection for a sexual dysfunction. 4. Entitlement to service connection for cervical spondylosis. 5. Entitlement to service connection for degenerative arthritis of the acromioclavicular joints, bilaterally. 6. Entitlement to service connection for degenerative arthritis of the knees. 7. Whether there is new and material evidence to reopen a claim of entitlement to service connection for hypertension. 8. Entitlement to an increased rating for service-connected residuals of frostbite of both feet with vasomotor instability and skin changes, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from January 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York (RO) which: denied service connection for an eye condition, a heart condition, a sexual dysfunction, cervical spondylosis, arthritis of the acromioclavicular joints and arthritis of the knees; which found no new and material evidence to reopen a claim of entitlement to service connection for hypertension; and which continued a 30 percent disability rating for residuals of frostbite of both feet with vasomotor instability and skin changes. The Board addresses the rating issue in the REMAND portion of this decision. FINDINGS OF FACT 1. There is no competent medical evidence that the veteran currently has an eye disorder. 2. There is no competent medical evidence linking a current heart disorder with the veteran's period of active service. 3. There is no competent medical evidence linking a current sexual dysfunction with the veteran's period of active service. 4. There is no competent medical evidence linking current cervical spondylosis with the veteran's period of active service. 5. There is no competent medical evidence linking current degenerative arthritis of the acromioclavicular joints, bilaterally, with the veteran's period of active service. 6. There is no competent medical evidence linking current degenerative arthritis of the knees with the veteran's period of active service. 7. By an unappealed decision in January 1985 the RO denied entitlement to service connection for hypertension. 8. Evidence associated with the claims file subsequent to the RO's January 1985 denial does not bear directly and substantially upon the specific matter under consideration, is cumulative or redundant, and by itself and in connection with evidence previously assembled is not so significant that it must be considered to decide fairly the merits of the claim. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for an eye disorder is not well grounded. 38 U.S.C.A. §5107(a) (West 1991). 2. The claim of entitlement to service connection for hypertensive cardiovascular disease with congestive failure is not well grounded. 38 U.S.C.A. §5107(a) (West 1991). 3. The claim of entitlement to service connection for a sexual dysfunction is not well grounded. 38 U.S.C.A. §5107(a) (West 1991). 4. The claim of entitlement to service connection for cervical spondylosis is not well grounded. 38 U.S.C.A. §5107(a) (West 1991). 5. The claim of entitlement to service connection for degenerative arthritis of the acromioclavicular joints, bilaterally, is not well grounded. 38 U.S.C.A. §5107(a) (West 1991). 6. The claim of entitlement to service connection for degenerative arthritis of the knees is not well grounded. 38 U.S.C.A. §5107(a) (West 1991). 7. The RO's January 1985 decision denying entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). 8. New and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for hypertension has not been submitted. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran was a prisoner of war (POW) from April 1944 to May 1945 during his World War II combat service in Europe. He contends that all disabilities at issue in appeal arose from his POW experience. As an initial matter the Board notes that the RO has been unable to locate all of the veteran's service medical records (SMRs). In September 1997 the RO requested the SMRs from the National Personnel Records Center (NPRC). In October 1997 the NPRC notified the RO that these records were unavailable, possibly because they were destroyed in a 1973 fire. The NPRC advised the RO that submission of a Request For Information Needed To Reconstruct Medical Data (NA Form 13055) might help locate the missing records. Although the veteran submitted a completed NA Form 13055 dated in November 1997, the SMRs still could not be found. The Board finds that the RO made a substantial effort to locate the veteran's SMRs. In consideration of the foregoing, the Board finds that the RO has expended all possible efforts to obtain records pertinent to the veteran's claim, that further search for the missing SMRs would be futile, and that the VA has no duty to continue to search for records that are apparently unavailable. See Porter v. Brown, 5 Vet. App. 233, 237 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Therefore, the Board is constrained to consider this matter solely upon the evidence of record. Service connection issues A veteran is entitled to service connection for a disability resulting from disease or injury incurred in or aggravated in line of duty while in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The threshold question for the Board, however, is whether the veteran presents well grounded claims for service connection. A well grounded claim is one that is plausible, capable of substantiation or meritorious on its own. 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well grounded claim there is no duty to assist the claimant in developing the facts pertinent to his claim and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). To establish that a claim for service connection is well grounded the appellant must demonstrate the existence of a current disability, the incurrence or aggravation of a disease or injury in service, and a nexus between the current disability and the in-service injury. Id. at 1467-1468. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to prove service incurrence. Id. at 1468. Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and that that same condition currently exists. This evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). A former POW who was detained for more than 30 days is entitled to a rebuttable presumption of service connection for certain diseases enumerated by regulation (listed diseases), even absent evidence of the disease in service, provided the listed disease manifests itself to a degree of 10 percent at any time following separation from service. 38 C.F.R. § 3.309(c). A. An eye disorder including optic atrophy associated with malnutrition The earliest post-service claims file evidence pertaining to the veteran's eyes is from 1984. In an August 1984 Former POW Medical History report (POW history), the veteran stated that he had experienced no eye or vision disorder while in captivity during service. An October 1984 Former POW VA examination (1984 examination) disclosed no eye abnormality except for the fundi, and no diagnosis of an eye disorder. The record also includes VA outpatient treatment records from November 1989 to July 1997 (treatment records) which include a single mention of what appears to be bilateral cataracts without further elaboration or explanation. A report of a September 1997 VA eye examination noted clear cornea, anterior chambers, irises and lenses and diagnosed the veteran's eyes as normal. Beyond the veteran's own statements, there is no competent medical evidence that the veteran has a current eye disorder. However, because the veteran is a lay person with no medical training or expertise, his statements alone cannot constitute competent evidence of the required diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that lay persons are not competent to offer medical opinions). Inasmuch as the record is devoid of competent medical evidence of a diagnosis of a current eye disorder, the veteran's claim for service connection for an eye disorder including optic atrophy associated with malnutrition is implausible and must be denied as not well grounded. B. Hypertensive cardiovascular disease with congestive failure The earliest post-service claims file evidence pertaining to the veteran's heart also is from 1984. The POW history notes that the veteran reported experiencing rapid and skipped or missed heartbeats while in captivity. The 1984 examination noted no diagnosis of heart disease. Medical records document the veteran's private heart examinations from March 1988 to September 1995 which appear to disclose heart abnormalities but include no diagnoses. The VA treatment records note an irregular heart rhythm and in late 1995 speculate as to whether the veteran might have ischemic heart disease. However, 1996 treatment records include a diagnosis only of congestive heart failure. A report of a September 1997 VA examination includes a diagnosis of hypertensive cardiovascular disease with congestive failure. Hypertensive cardiovascular disease with congestive failure does not constitute a listed disease for which a presumption of service connection applies. See 38 C.F.R. § 3.309(c). Beyond the appellant's own statements, there is no competent medical evidence linking the veteran's heart disorder to his period of active service or captivity. However, as above, the veteran's statements alone are not competent evidence of the required nexus. See Espiritu v. Derwinski, 2 Vet. App. at 494-95. Inasmuch as the record is devoid of competent medical evidence linking a current heart disorder to the veteran's period of active service, his claim for service connection for hypertensive cardiovascular disease with congestive failure is implausible and must be denied as not well grounded. C. Sexual dysfunction The earliest post-service claims file evidence pertaining to the veteran's sexual functioning appears in the November 1989 to July 1997 treatment records. The POW history and 1984 examination report note no evidence of genitourinary or genitalia abnormalities or diagnosis for impotence or another sexual dysfunction. The treatment records note that the veteran was treated for impotence and the report of one of the September 1997 VA examinations attributed the veteran's interrupted sexual function to his congestive heart failure and medications. A sexual dysfunction does not constitute a listed disease for which a presumption of service connection applies. See 38 C.F.R. § 3.309(c). Beyond the appellant's own statements, there is no competent medical evidence linking the veteran's sexual dysfunction to his period of active service or captivity. However, as above, the veteran's statements alone are not competent evidence of the required nexus. See Espiritu v. Derwinski, 2 Vet. App. at 494-95. Inasmuch as the record is devoid of competent medical evidence linking a current sexual disorder to the veteran's period of active service, his claim for service connection for sexual dysfunction is implausible and must be denied as not well grounded. D. Cervical spondylosis The earliest post-service claims file evidence pertaining to a cervical spine disorder is from August 1984. The POW history notes unspecified muscle and joint aches, pains and swelling but no specific reference to a cervical spine disorder. The 1984 examination report notes, without elaboration, a 50 percent limitation of cervical spine motion. The treatment records include a diagnosis of degenerative joint disease but no specific reference to a cervical spine disorder. The report of the September 1997 VA joints examination notes a symptomatic cervical spine including pain in the right supraclavicular area, increased cervical lordosis and marked limitation of motion without pain, tenderness or sensory or motor deficits. X-rays disclosed degenerative changes in the lower cervical spine. The diagnosis was cervical spondylosis which the examiner characterized as indicative of the aging process and not of traumatic origin. Because the veteran's cervical spine disorder is not traumatic in origin, it does not constitute a listed disease for which a presumption of service connection applies. See 38 C.F.R. § 3.309(c). Beyond the appellant's own statements, there is no competent medical evidence linking the veteran's cervical spondylosis to his period of active service or captivity. However, as above, the veteran's statements alone are not competent evidence of the required nexus. See Espiritu v. Derwinski, 2 Vet. App. at 494-95. Inasmuch as the record is devoid of competent medical evidence linking current cervical spondylosis to the veteran's period of active service, his claim for service connection for cervical spondylosis is implausible and must be denied as not well grounded. E. Degenerative arthritis of the acromioclavicular joints The earliest post-service claims file evidence pertaining to a shoulder disorder appears in the November 1989 to July 1997 treatment records. The POW history notes unspecified muscle and joint aches, pains and swelling but no specific reference to a shoulder disorder. The 1984 examination report notes no evidence of a shoulder disorder. The treatment records include a diagnosis of degenerative joint disease and arthritis of the shoulders. The report of the September 1997 VA joints examination notes the veteran's report of bilateral shoulder pain and objective findings including limitation of motion. X-rays disclosed degenerative changes in the acromioclavicular joints which the examiner characterized as indicative of the aging process and not of traumatic origin. Because the veteran's degenerative arthritis of the acromioclavicular joints is not traumatic in origin, it does not constitute a listed disease for which a presumption of service connection applies. See 38 C.F.R. § 3.309(c). Beyond the appellant's own statements, there is no competent medical evidence linking the veteran's shoulder disorder to his period of active service. However, as above, the veteran's statements alone are not competent evidence of the required nexus. See Espiritu v. Derwinski, 2 Vet. App. at 494-95. Inasmuch as the record is devoid of competent medical evidence linking a current shoulder disorder to the veteran's period of active service, his claim for service connection for cervical spondylosis is implausible and must be denied as not well grounded. F. Degenerative arthritis of the knees The earliest post-service claims file evidence pertaining to a knee disorder is from the November 1989 to July 1997 treatment records. The POW history notes unspecified muscle and joint aches, pains and swelling but no specific reference to a knee disorder. The 1984 examination report notes no evidence of a knee disorder. The treatment records include a diagnosis of degenerative joint disease and arthritis of the knees. The report of the September 1997 VA joints examination notes the veteran's report of bilateral knee pain and swelling and objective findings including absence of deformity, minimal crepitus, good stability and limitation of motion. X-rays disclosed degenerative changes in the knees which the examiner characterized as indicative of the aging process and not of traumatic origin. Because the veteran's bilateral degenerative arthritis of the knees is not traumatic in origin it does not constitute a listed disease for which a presumption of service connection applies. See 38 C.F.R. § 3.309(c). Beyond the appellant's own statements, there is no competent medical evidence linking the veteran's knee disorder to his period of active service or captivity. However, as above, the veteran's statements alone are not competent evidence of the required nexus. See Espiritu v. Derwinski, 2 Vet. App. at 494-95. Inasmuch as the record is devoid of competent medical evidence linking a knee disorder to the veteran's period of active service, his claim for service connection for bilateral degenerative arthritis of the knees is implausible and must be denied as not well grounded. New and material evidence The veteran essentially asserts that there is new and material evidence supporting his claim for service connection for hypertension. However, the RO previously had considered this claim and denied entitlement to the benefit sought in a January 1985 rating decision. The denial was based upon the RO's finding no evidence of a causal link between hypertension and the veteran's period of active service or POW captivity. The January 1985 decision became final when the veteran declined to initiate an appeal. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). The VA may reopen and readjudicate a final decision only upon a finding of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a) (1999); see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). New and material evidence is evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a). If VA finds evidence to be new and material it then determines whether the claim is well grounded. Winters v. West, 12 Vet. App. 203, 206-07 (1999) (en banc). The VA then evaluates a well- grounded claim on the merits after ensuring fulfillment of the duty to assist. Id.; 38 U.S.C.A. § 5107. The evidence of record at the time of the RO's January 1985 decision included the August 1984 POW history which included a complaint of hypertension and the October 1984 VA examination report which included a diagnosis of hypertension since the late 1960s or early 1970s without kidney, heart or eye involvement. Evidence added to the claims file after the January 1985 decision includes March 1988 to September 1995 records of private heart examinations, VA treatment records from November 1989 to July 1997, and reports of VA joints, general and eye examinations in September and October 1997. Several of the VA treatment records include diagnoses for hypertension and the September 1997 VA general examination noted blood pressure measurements of 160/100 on three separate occasions. This evidence is not new and material because it is cumulative and redundant of previously submitted materials documenting diagnoses of hypertension and it is not significant because it still fails to provide a necessary element of the veteran's claim - medical evidence of a causal link between hypertension and the veteran's service or captivity. Beyond the veteran's own statements, there is no competent medical evidence linking his hypertension to his period service or captivity. However, as above, the veteran's statements alone are not competent evidence of the required nexus. See Espiritu v. Derwinski, 2 Vet. App. at 494-95, nor do they provide a sufficient basis for reopening the previously disallowed claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1995) (holding that where resolution of an issue turns on a medical matter, lay evidence, even if considered "new," may not serve as a predicate to reopen a previously denied claim). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen his claim. See Graves v. Brown, 8 Vet. App. 522 (1996). Based upon the foregoing, the Board concludes that there is no new and material evidence to reopen the previously disallowed claim for entitlement to service connection for hypertension and that the RO's January 1985 decision remains final. The RO's explanation of its January 1985 decision not to reopen includes a statement to the effect that newly submitted evidence cannot be new and material if it would not change the outcome of a case when viewed in the context of all other evidence of record. This interpretation of the requirements to reopen a previously denied claim is now invalid. See Hodge v. West, 155 F.3d 1356, 1363 (Fed Cir. 1998). Nevertheless, the Board finds that the veteran has not been prejudiced by the RO's recitation of an erroneous interpretation of VA regulations because the RO also has provided valid reasons for declining to reopen the veteran's claim and because the RO has provided the veteran with the full text 38 C.F.R. § 3.156. ORDER Entitlement to service connection for an eye disorder including optic atrophy associated with malnutrition is denied. Entitlement to service connection for hypertensive cardiovascular disease with congestive failure is denied. Entitlement to service connection for a sexual dysfunction is denied. Entitlement to service connection for cervical spondylosis is denied. Entitlement to service connection for degenerative arthritis of the acromioclavicular joints, bilaterally, is denied. Entitlement to service connection for degenerative arthritis of the knees is denied. There is no new and material evidence to reopen the veteran's claim of entitlement to service connection for hypertension. REMAND The Board notes that review of the claims file discloses that the RO has not fully responded to all issues raised in this case. In addition to the issues discussed above, the RO's November 1997 rating decision found that the veteran was not entitled to a rating in excess of 30 percent for service-connected residuals of frostbite of both feet with vasomotor instability and skin changes. By a written statement on a VA Form 9 dated and received in February 1998, the veteran contested the decision and requested appellate review. The Board, therefore, construes the February 1998 statement as a timely Notice of Disagreement (NOD), filed within a year of the date of the challenged rating decision. See 38 C.F.R. § 20.201 (1999). Review of the claims file does not disclose that the RO provided the veteran with the required Statement of the Case (SOC) in response to the NOD. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (1999). When the Board determines that further evidence or clarification of the evidence, or correction of a procedural defect is essential for a proper appellate decision, the Board must remand the matter to the agency of original jurisdiction. 38 C.F.R. § 19.9 (1999); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (Board determination that RO failure to issue an SOC in response to a veteran's NOD contesting a rating decision is a procedural defect requiring remand to the RO). In consideration of the foregoing, the Board has determined that further development of the case is necessary to provide the veteran due process of law and full consideration of this appeal. Accordingly, this case is REMANDED for the following action: The RO should provide the veteran and his representative with an SOC addressing all evidence pertaining to evaluation of residuals of frostbite of both feet with vasomotor instability and skin changes and with information regarding the appropriate time period within which to submit a substantive appeal. If the veteran files a timely substantive appeal the RO should process the case and return it to the Board in compliance with the applicable procedures regarding processing appeals. Thereafter, the RO should readjudicate the veteran's claim for an increased rating for residuals of frostbite of both feet with vasomotor instability and skin changes. If the RO denies the benefit sought on appeal, it should issue a supplemental statement of the case and provide the veteran with a reasonable time within which to respond. The RO then should return the case to the Board for final appellate consideration. The purpose of this REMAND is to obtain additional development, and the Board does not now intimate an opinion, either favorable or unfavorable, as to the merits of the case. Although the veteran need not take further action until so notified by the RO, the veteran may submit to the RO additional evidence and argument pertaining to this remand. Kutscherousky v. West, 12 Vet. App. 369 (1999). WARREN W. RICE, JR. Member, Board of Veterans' Appeals