Citation Nr: 0003002 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 98-04 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for lumbar disc disease with nerve involvement of the right thigh. 2. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for meralgia paresthetica of the right thigh. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from July 1943 to November 1945. He was a prisoner of war of the German government from January 2, 1945, to April 16, 1945. Service connection for a right hip disorder was denied in a Board of Veterans' Appeals (Board) decision dated in March 1973. In July 1983, the Board once again denied service connection for a right hip disorder, noting that the veteran had not presented a new factual basis upon which to allow the claim. This appeal arises from a October 1997 decision by the Cleveland, Ohio, Regional Office (RO) that new and material evidence had not been submitted to reopen the veteran's claim for service connection for meralgia paresthetica of the right thigh. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. Service connection for meralgia paresthetica of the right thigh was previously denied by the RO and confirmed by the Board in March 1973 and in July 1983 decisions. 3. Evidence submitted or secured since the July 1983 Board decision is so significant that it must be considered in order to fairly decide the merits of the claim. 4. The veteran suffers from meralgia paresthetica of the right thigh that was incurred as a result of his active service. 5. There is no nexus between the veteran's present lumbar disc disease with nerve involvement of the right thigh and events in service or on a secondary basis to service- connected disabilities. CONCLUSIONS OF LAW 1. The July 1983 Board decision, which subsumes the previous denial of entitlement to service connection for meralgia paresthetica of the right thigh, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1104 (1999). 2. New and material evidence has been received to reopen the veteran's claim for entitlement to service connection for meralgia paresthetica of the right thigh. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. Meralgia paresthetica of the right thigh was caused by the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(a), 3.309(c) (1999). 4. The claim for service connection for lumbar disc disease with nerve involvement of the right thigh is not well- grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The RO originally denied service connection for meralgia paresthetica of the right thigh in a September 1972 rating decision. The denial was confirmed by a Board decision issued in March 1973. The veteran again attempted to reopen his claim in December 1981. Entitlement to service connection for a right hip disorder was denied by the Board in July 1983. Therefore, the July 1983 Board decision, which subsumes the previous denial by the RO, is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1104. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 218 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "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). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. The evidence of record at the time of the July 1983 Board decision included the veteran's service medical records and a November 1945 examination for separation that was negative for complaints, symptoms or findings regarding a right thigh problem. Other evidence included VA medical records, including examination reports that diagnosed meralgia paresthetica of Roth and hospitalization summaries. A May 1972 letter from Ervin L. Koons, M.D., stated that the veteran had a marked decrease in sensory impulse on lateral right thigh extending to the knee. It had been present since the days of prison camp when the veteran was extremely emaciated. Pressure caused by lying on a hard board bed at that time caused damage to the nerve. A March 1982 VA neurological examination concluded with the diagnosis of traumatic neuropathy due to pressure of the right lateral femoral cutaneous nerve with resultant numbness over the lateral aspect of the right thigh. On the basis of that evidence, the Board concluded that the right hip disability was not present until many years after service, and service connection was denied. Evidence received since the July 1983 Board decision includes a January 1998 examination report from S. Zaheer Hasan, M.D. The assessments included possible entrapment of the lateral femoral cutaneous nerve of the thigh on the right side. The report states that this could have been possible for improper and unusual posturing and/or subsequent compression of the lateral femoral cutaneous nerve at the level of the inguinal ligament. Also of record is a transcript of the veteran's personal hearing in May 1998 wherein he testified that he lost much weight while he was a prisoner of war. He slept on rough sawn boards without a mattress or cushion of any kind. When he first got the numbness in his leg he thought that he had severed a nerve in his right hip. It has bothered him ever since his prisoner of war time. The veteran's spouse testified that she has known since 1952 that the veteran had had the numbness in his right thigh. He told her then that it came from his prisoner of war days. A May 1998 letter from a friend years who was a prisoner of war with the veteran states that the veteran had had a right leg condition that he attributed to sleeping on a board while a prisoner of war. An October 1999 VA medical opinion states that the veteran's symptoms suggest a long-standing compression of the lateral femoral cutaneous nerve that could be related to the position which the veteran assumed while sleeping on wooden boards. Considering the evidence submitted since the July 1983 Board decision, the Board finds that there is new and material evidence to reopen the veteran's claim. Generally, the January 1998 examination report from S. Zaheer Hasan, M.D, the May 1998 testimony from the veteran and his spouse, as well the October 1999 VA medical opinion provides additional evidence to the incurrence of a right hip disorder in service. The Board finds that this evidence is, relative to the evidence of record at the time of the July 1983 rating decision, new and material under 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened. 38 U.S.C.A. § 5108. Service connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Diseases specific as to former prisoners of war. If a veteran is: (1) A former prisoner of war and; (2) as such was interned or detained for not less than 30 days, the following diseases shall be service-connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of § 3.307 are also satisfied. Avitaminosis, beriberi (including beriberi heart disease), chronic dysentery, helminthiasis, malnutrition (including optic atrophy associated with malnutrition), pellagra, any other nutritional deficiency, psychosis, any of the anxiety states, dysthymic disorder (or depressive neurosis), organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite, post- traumatic osteoarthritis, irritable bowel syndrome, peptic ulcer disease, peripheral neuropathy except where directly related to infectious causes. 38 C.F.R. § 3.309(c) (1999). Meralgia Paresthetica Of The Right Thigh The veteran, a former prisoner of war, has testified that he developed a right hip disorder as a result of sleeping on wooden boards while a prisoner of war. This is accepted as satisfactory evidence of injury to the hip in service. The medical evidence clearly indicates that the veteran has had a right thigh condition of a neurological nature for several decades. A VA examiner has linked the current symptoms to nerve damage caused by the harshness of the veteran's captivity during World War II. Balancing the evidence and applying the benefit of the doubt under 38 U.S.C.A. § 5107(b), the veteran is entitled to service connection for meralgia paresthetica of the right thigh. Lumbar Disc Disease With Nerve Involvement Of The Right Thigh As previously stated, in order for a claim to be well- grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). A review of the service medical records does not reveal any references to lumbar spine pathology. Although as early as 1970, the veteran was noted to have degenerative bone and joint changes of the lumbosacral strain, he reported in a December 1983 Former POW Medical History that he was never beaten or tortured, nor did he mention the lumbosacral spine. While S. Zaheer Hasan, M.D., in 1998, noted right lumbosacral polyradiculopathy and suggested that given the veteran's history, trauma to the lumbar spine could be suspected, this is based on a history provided by the veteran, and not a review of the veteran's service medical records and VA medical records. Medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The only statements relating the lumbar spine disorders to service or to a service-connected disorder, are those made by the veteran. Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Finally, in October 1999, a VA examiner concluded, after reviewing the record, that it was highly unlikely that there was a relationship between the peripheral nerve injury of the right thigh and a lumbar spine disorder. Absent competent medical evidence showing a relationship between the service and the veteran's current lumbar spine disorder or establishing a relationship between service- connected disabilities and the lumbar spine disorder, the claim is not well grounded. Epps v. Gober, 126 F.3d 1464, 1468 (1997). Under these circumstances, the Board finds that the veteran has not submitted a well-grounded claim for service connection lumbar disc disease with nerve involvement of the right thigh. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). ORDER Subject to the laws and regulations governing the payment of monetary benefits, entitlement to service connection for meralgia paresthetica of the right thigh is granted. Entitlement to service connection for lumbar disc disease with nerve involvement of the right thigh is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals