Citation Nr: 0000188 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-05 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for the residuals of a head injury. 2. Entitlement to service connection for the residuals of rib fractures. 3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a back injury. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for a ventral hernia due to VA treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on honorable duty from October 1943 to May 1946. This appeal arose from a January 1998 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA), Regional Office (RO), which denied service connection for rib fractures, refused to reopen the claim for a back condition and which denied entitlement to compensation under 38 U.S.C.A. § 1151 for a ventral hernia. An August 1998 rating decision denied entitlement to service connection for the residuals of a head injury. FINDINGS OF FACT 1. The veteran has not been shown by credible evidence to suffer from the residuals of a head injury or rib fractures that can be related to his service. 2. The Board of Veterans' Appeals (Board) denied entitlement to service connection for a back injury in May 1981. 3. The RO denied entitlement to service connection for a back injury in April 1996. 4. Additional evidence submitted since that time fails to show that a back injury was incurred in service, or that arthritis manifested to a compensable degree within one year of his discharge. 5. There is no competent medical evidence of the existence of a ventral hernia related to treatment by VA. CONCLUSIONS OF LAW 1. The veteran has not presented evidence of well-grounded claims for service connection for the residuals of a head injury or rib fractures. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991). 2. Evidence received since the RO denied entitlement to service connection for a back injury in April 1996 is not new and material, so that the claim is not reopened, and the April 1996 decision of the RO is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.307, 3.309, 20.302 (1999). 3. The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a ventral hernia due to treatment by VA is not well grounded. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for the residuals of a head injury and rib fractures The threshold question to be answered in this case is whether the appellant has presented evidence of well-grounded claims; that is, ones which are plausible. If he has not presented well-grounded claims, his appeal must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, it is found that his claims for residuals of a head injury and rib fractures are not well grounded. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). FACTS Residuals of a head injury The veteran's service medical records are silent as to any complaints of or treatment for a head injury. His May 1946 separation examination was within normal limits. The veteran was examined by VA in November 1948. There was no mention of any head injury or the residuals of such an injury. In fact, he specifically denied the existence of the residuals of any injuries. The remainder of the records also make no reference to any head injury residuals, to include an extensive private examination performed in November 1995. Rib fractures The veteran's service medical records are silent as to any complaints of or treatment for rib fractures. The separation examination conducted in May 1946 was normal. The veteran was examined by VA in November 1948. This examination did not make any mention of rib fractures. In fact, he denied experiencing the residuals of any injuries. In November 1995, the veteran was afforded an extensive examination by a private physician. He specifically denied a history of rib fractures. ANALYSIS Initially, in order to establish service connection, the following three elements must be satisfied: 1) the existence of a current disability; 2) the existence of a disease or injury in service; and 3) a relationship or nexus between the current disability and a disease contracted or an injury sustained in service. Caluza v. Brown, 7 Vet. App. 498 (1995); Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the instant case, there is no evidence that the veteran suffered a head injury or fractured his ribs in service; thus, the element of well groundedness that requires the existence of an injury in service has not been established. Importantly, there is no objective medical evidence that the veteran suffers from any current disabilities that have been attributed to either a head injury or rib fractures. Therefore, the existence of a current disability has also not been established. Clearly, the veteran has failed to present evidence of well-grounded claims for service connection for the residuals of a head injury or rib fractures. The appellant has not informed VA of the existence of any specific evidence germane to any claim at issue that would complete an incomplete application for compensation, i.e., well ground an otherwise not well grounded claim, if submitted. Consequently, no duty arises in this case to inform the appellant that his application is incomplete or of actions necessary to complete it. See 38 U.S.C.A. § 5103(a) (West 1991); Beausoleil v. Brown, 8 Vet. App. 459 , 465 (1996); Johnson v. Brown, 8 Vet. App. 423, 427 (1995); cf. Robinette v. Brown, 8 Vet. App. 69 (1995) (when a claim is not well grounded and claimant inform VA of the existence of certain evidence that could well ground the claim, VA has duty under 38 U.S.C.A. § 5103(a) to inform claimant that application for compensation is incomplete and to submit the pertinent evidence). II. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a back injury The applicable criteria state that a notice of disagreement shall be filed within one year from the date of mailing of the notification of the initial review and determination; otherwise, that determination will become final and is not subject to revision on the same factual basis. The date of the notification will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302 (1999). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A.§ 5108 (West 1991). "New and material evidence" means 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 or in conjunction 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) (1999). The evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran has served for 90 days or more during a period of war and arthritis becomes manifest to a degree of 10 percent within one year from the 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 (1999). The evidence that was of record when the RO considered this issue in April 1996 will be briefly summarized. The veteran's service medical records did not contain any complaints of or treatment for a back injury. The May 1946 separation examination noted that his musculoskeletal system was within normal limits. A November 1948 VA examination was also normal. He offered no complaints concerning his low back at that time. During a March to May 1976 VA hospitalization, the veteran noted that he had arthritis of the back. The objective examination was normal. In August 1977, a service comrade submitted a statement in which it was indicated that the veteran had fallen off a feed pump aboard ship in the winter of 1944, injuring his back. A private physician submitted a statement in May 1980 in which it was noted that he had treated the veteran since the fall of 1946. He was reportedly seen for a back injury that allegedly began in service. The physician admitted that this statement was based on his memory, noting that the records were in storage. Another physician also submitted a statement in May 1980. This noted that the veteran had been examined on May 26. His spine was reportedly arthritic. He was experiencing progressive stiffness and decreased range of motion. In March 1996, another service comrade submitted a statement in which the veteran's fall from a feed pump in 1944 was again noted. He then left the ship with back injuries. The evidence submitted since the April 1996 denial included the report of an April 1979 private examination. This showed no tenderness or muscle spasms in the low back. While hospitalized in November 1979, the veteran indicated that he had arthritis in the lower spine. After a careful review of the evidence of record, it is found that the additional evidence that the veteran has submitted is not "new and material." Accordingly, his claim is not reopened and the April 1996 decision by the RO remains final. "New" evidence means more than evidence which was not previously physically of record. To be "new," additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In the instant case, the additional evidence is merely cumulative. The evidence previously of record included the veteran's and other lay statements of the incurrence of a back injury in service, as well as evidence of the apparent development of arthritis in the late 1970's. However, there was no objective evidence of a relationship between any reported injury and any back disorder. The additional evidence shows nothing new to establish that any current back disorder is etiologically related to his service. While the veteran has asserted that such a relationship exists, he is not competent, as a layperson, to render an opinion as to medical etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Nor does this evidence suggest that arthritis had manifested to a compensable degree within one year of his discharge. Because the veteran has not submitted new evidence, he has not fulfilled the requirement of presenting "new and material" evidence to reopen his claim for service connection for a low back disorder. Since it has been determined that no new evidence has been submitted, no further analysis is needed, for the evidence could not be "new and material" if it is not new. Smith v. West, 12 Vet. App. 312 (1999). III. Entitlement to compensation under 38 U.S.C.A. § 1151 for a ventral hernia due to VA treatment When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1999). For claims filed prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S. Ct. 552 (1994); but see 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998) (indicating that a showing of negligence or fault is necessary for recovery for claims filed on or after October 1, 1997). In determining that additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. 38 C.F.R. § 3.358(b)(1) (1999). Compensation will not be payable for the continuance or natural progress of diseases or injuries for which hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b)(2) (1999). Several conditions govern the determination of whether any additional disability resulted from VA hospitalization or treatment. First, it is necessary for the veteran to show that additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization or medical treatment and not merely coincidental therewith. The mere fact of aggravation alone will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, an examination, or medical or surgical treatment. 38 C.F.R. § 3.358(c)(1) and (2) (1999). Second, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or treatment administered. 38 C.F.R. § 3.358(c)(3) (1999). However, the initial question that must be answered in this case is whether the veteran has presented a well-grounded claim. In this regard, the veteran has the burden of submitting evidence "sufficient to justify a belief by a fair and impartial individual" that the claim is well grounded; that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In a case where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In the instant case, the veteran underwent a colonoscopy in November 1979. He tolerated the procedure well. No complications were noted. The objective evidence of record, to include an extensive examination conducted by a private physician in November 1995, does not show the existence of a ventral hernia. This examination noted that the abdomen was soft and without palpable masses. After a careful review of the relevant evidence of record, it is found that there is no competent medical evidence establishing the existence of an additional disability, namely a ventral hernia, that can be related to the November 1979 colonoscopy performed by VA. Although the veteran has asserted that such additional disability exists, he is not competent, as a layperson, to render an opinion as to medical diagnosis. See Espiritu, supra. A well-grounded claim must be supported by evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Here, the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991) for a ventral hernia is well grounded. In the absence of competent medical evidence to support the veteran's claim, this claim must be denied as not well grounded. The appellant has not informed VA of the existence of any specific evidence germane to any claim at issue that would complete an incomplete application for compensation, i.e., well ground an otherwise not well grounded claim, if submitted. Consequently, no duty arises in this case to inform that appellant that his application is incomplete or of actions necessary to complete it. See 38 U.S.C.A. § 5103(a) (West 1991); Beausoleil, supra; Johnson, supra; cf. Robinette, supra (when a claim is not well grounded and claimant inform VA of the existence of certain evidence that could well ground the claim, VA has duty under 38 U.S.C.A. § 5103(a) to inform claimant that application for compensation is incomplete and to submit the pertinent evidence). It is also found that there is no prejudice to the veteran in denying this claim as not well grounded, even though the RO decision was on the merits. Edenfield v. Brown, 8 Vet. App. 384 (1995). ORDER Service connection for the residuals of a head injury is denied. Service connection for rib fractures is denied. New and material evidence not having been presented to reopen the claim of entitlement to service connection for a back injury, the benefit sought on appeal is denied. Compensation under 38 U.S.C.A. § 1151 for a ventral hernia due to VA treatment is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals