Citation Nr: 0006392 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-08 597A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for a pulmonary disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from August 1944 to March 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. Service connection for residuals of a back injury was denied by an unappealed final RO decision in August 1980. The August 1980 decision is the last final denial on any basis. 2. Evidence received since the August 1980 RO decision, when considered alone or in conjunction with all of the evidence of record, is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. The claim of entitlement to service connection for a pulmonary disorder is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. Evidence received since the August 1980 final RO decision is not new and material; the veteran's claim of entitlement to service connection for a back disorder may not be reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The claim of entitlement to service connection for a pulmonary disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The veteran served on active duty from August 1944 to March 1945. He was discharged from service with a Certificate of Disability for Discharge for a hearing loss. The veteran's hearing loss was determined to preexist his period of service with no aggravation by service. The veteran's service medical records (SMRs) also show that he was treated for complaints of low back pain in January 1945. It was noted that he had a preexisting back injury from playing football in 1939. An orthopedic consultation, dated in January 1945, noted that there was no evidence that the veteran's symptoms were aggravated by service. The disorder was judged not to have been incurred in the line of duty. The veteran was diagnosed with mild, chronic traumatic arthritis of the lumbosacral apophyseal joints, with early sclerosis, secondary to injury in 1939. The veteran filed a claim in March 1945 to establish service connection for his hearing loss and back injury. He was granted service connection in April 1945 and assigned a 10 percent rating for traumatic arthritis of the lumbosacral spine. The veteran's 10 percent rating remained in effect until June 1957 when the RO proposed to sever service connection for the appellant's lumbosacral arthritis. The basis for the proposal was that there was clear and unmistakable error (CUE) in the April 1945 rating decision in that the condition existed prior to service and that there was no evidence of aggravation in service. The veteran was notified of the proposed action by two separate letters dated in December 1957 and given an opportunity to present evidence on his behalf. The veteran failed to provide any evidence and service connection was severed for both his hearing loss and lumbosacral arthritis, effective March 1958. The veteran appealed the RO's action but the severance was confirmed by a Board decision dated in July 1958. The veteran sought to reopen his claim on several occasions. In July 1980 he again sought to establish service connection for his back injury. He was notified in August 1980 of the prior severance of service connection of his back disability and the need to provide new and material evidence to establish service connection. The veteran failed to perfect an appeal of that decision. Therefore, the August 1980 decision is final. 38 U.S.C.A. § 7105. Accordingly, the veteran's claim may only be reopened and considered on the merits if new and material evidence has been submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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 connection 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). New and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis. Evidence presented since the last final disallowance need not be probative of all elements required to award the claim, but need be probative only as to each element that was a specified basis for the last disallowance. The United States Court of Appeals for Veterans Claims (Court) has held that VA must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Elkins v. West, 12 Vet. App. 209, 219 (1999). If new and material evidence has been presented, immediately upon reopening the claim VA must determine whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is well grounded, VA may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C.A. § 5107(b) has been filled. Id. Evidence of record at the time of the RO's August 1980 denial consisted of: the veteran's SMRs; record of hospitalization at Brecksville, Ohio, VA hospital, for the period from April 3 to April 10, 1945; Summary of Hospitalization from South Florida State Hospital, dated in May 1960; Final Summary from South Florida State Hospital, dated in August 1960; letter from Ms. Ethel Lawrence, Child Welfare Worker, dated in May 1961; statement form [redacted], dated in May 1962; statement from B. F. Ponder, M. D., dated in May 1962; VA examination reports dated in March 1946, March 1947, May 1947, February 1957, July 1962, and January 1965; VA outpatient treatment report dated in October 1996; and statements from the veteran. Based on this evidence, the RO denied the veteran's claim on the basis that his back injury preexisted service and that there was no evidence of aggravation in service. In October 1996, the veteran filed to reopen his claim for service connection for residuals of a back injury. Since the RO's August 1980 decision, the evidence added to the file includes: (1) copy of a VA outpatient treatment record, dated in October 1996; and, (2) transcript of Travel Board hearing, dated in January 2000. Significantly, however, after carefully considering the evidence submitted since the 1980, in light of evidence previously available, the Board is compelled to find that the veteran has not submitted evidence which is new and material. In this respect, the VA outpatient treatment record does not contain any evidence pertinent to the veteran's claim. There was no reference to the veteran's claimed back condition. Accordingly, this evidence, while new to the record, is not material. In January 2000, the veteran testified at a Travel Board hearing before the undersigned Member that he received treatment for his back while in service as well as shortly after his discharge from service. He did not, however, provide testimony relative to the issue of a medical opinion that would relate any current symptomatology to an aggravation of his preexisting back condition. Rather, he simply alleged that he injured his back in service. As a lay person, the veteran is not competent to proffer the necessary medical evidence of current disability or nexus evidence showing a link between any current claimed disorder and service. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Accordingly, the Board finds that the veteran's testimony, by itself, or in conjunction with the other evidence of record, is not so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, because the evidence submitted since 1980 is not new and material, the claim may not be reopened, and the benefit sought on appeal is denied. In reaching this decision the Board views its discussion as sufficient to inform the veteran of the elements necessary to reopen his claim. See Graves v. Brown, 9 Vet. App. 172, 173 (1996). In this regard, the discussion above informs the veteran of the steps he needs to fulfill in order to reopen his claim, and an explanation why his current attempt to reopen the claim must fail. II. Service Connection The veteran is seeking service connection for a pulmonary disorder. The legal question to be answered initially is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail with respect to this claim and there is no duty to assist him further in the development of this claim. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). The service medical records are negative for any indication of a pulmonary disorder. Moreover, a review of the various VA examination reports dating from 1946 to 1965, is also negative for any diagnosis of a pulmonary disorder. Chest x- rays, taken in conjunction with several of the examinations, were reported as negative. Further, the October 1996 VA treatment report submitted by the veteran contains no information pertaining to a pulmonary disorder. In short, no medical or other competent evidence showing that he currently has a pulmonary disability has been presented. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Instead, the only evidence the veteran has offered in support of his claim comes from his testimony at his Travel Board hearing in January 2000. While the veteran is certainly capable of providing evidence of symptomatology, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Causative factors of a disease, such as arthritis, amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). Therefore, without competent evidence of a current disability, as well as competent evidence linking a current disorder to service this claim must be denied as not well grounded. A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since the veteran has submitted no medical or other competent evidence to support his claim that he currently suffers from a pulmonary disorder, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107. Hence, the benefit sought on appeal is denied. As the foregoing explains the need for competent evidence of a current disability which is linked by competent evidence to service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disabilities. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). ORDER New and material evidence not having been submitted to reopen a claim for service connection for residuals of a back injury, the appeal with respect to this issue is denied. Service connection for a pulmonary disorder is denied. DEREK R. BROWN Member, Board of Veterans' Appeals