Citation Nr: 0007439 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-13 515A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for a back disability. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a nervous disorder. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The veteran served on active duty from May 1974 to May 1976. He also had active duty with the Puerto Rico Army National Guard from July 1981 to July 1989. He had active duty for training with the United States Army National Guard from August 1986 to December 1986 and with the Puerto Rico Army National Guard from May 1987 to June 1987. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1996 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The veteran has not submitted competent medical evidence that his current back disability is related to a disease or injury incurred during active duty or active duty for training. 2. The RO denied service connection for a nervous disorder in March 1981. The veteran did not appeal and the decision became final. 3. The RO refused to reopen the veteran's claim for entitlement to service connection for a nervous disorder in March 1996. 4. The RO denied service connection for hepatitis in March 1981. The veteran did not appeal and the decision became final. 5. The RO refused to reopen the veteran's claim for entitlement to service connection for hepatitis in March 1996. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a back disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Evidence received since the RO denied entitlement to service connection for a nervous disorder is not new and material, so that the claim is not reopened, and the March 1981 decision of the RO is final. 38 U.S.C.A. §§ 1110, 1131, 5107(a), 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303(c), 20.302 (1999). 3. Evidence received since the RO denied entitlement to service connection for hepatitis is not new and material, so that the claim is not reopened, and the March 1981 decision of the RO is final. 38 U.S.C.A. §§ 1110, 1131, 5107(a), 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303(c), 20.302 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The issues before the Board are whether the veteran is entitled to service connection for a back disability. A veteran who submits a claim for benefits to the VA shall have the burden of offering sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to his claim, and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (Fed. Cir. 1997). The veteran must demonstrate three elements to establish that a claim is well grounded. First, the veteran must present medical evidence of a current disability. Second, the veteran must produce medical, or in some instances, lay evidence of an in-service incurrence or aggravation of a disease or injury. Finally, the veteran must offer medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Epps, 126 F.3d at 1468- 69. A veteran may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), 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 the same condition currently exists. Such evidence must be medical unless the condition at issue is a type as to which, under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation 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). The veteran has asserted that his back disability began in service. The August 1973 Army induction report of medical examination showed that the veteran's spine and other musculoskeletal system was normal. His Army separation examination was unavailable. The November 1980 VA examination report indicated that there were no pathological findings with regard to the veteran's musculo-skeletal system. The Puerto Rico Army National Guard medical records show that the veteran was seen for a low back meniscus injury secondary to a fall in January 1983. X-rays of the lumbosacral were negative for trauma but showed several congenital defects. The veteran complained of back pain in June 1983. X-rays showed that his lumbar vertebrae were within normal limits. The fourth through fifth lumbar vertebra was decreased congenitally. A private X-ray report, dated February 1984, revealed minimal mid lumbar scoliosis with right concavity. Vertebral height was normal as was alignment and intravertebral disc spaces. There was no evidence of fracture, dislocation or other defects. The impression was minimal lumbar scoliosis. Puerto Rico Army National Guard records show that in October 1986 the veteran complained of back pain. In June 1987 the veteran was seen at a VA Hospital for lumbar pain. A Form DA 2173, dated June 1987, indicated that the veteran injured his back in a fall in while on active duty for training with the Puerto Rico Army National Guard. Private medical records show that the veteran was seen for low back pain in February 1995. Private X-rays of the lumbar spine, dated February 1995, revealed paravertebral muscle spasm and minimal lumbar spondylosis. At the February 1995 VA examination there were no postural abnormalities of the veteran's back and no fixed deformities were noted. There was tenderness to palpation of the lumoparavertebral muscles. Forward flexion of the lumbar spine was to 72 degrees and backward extension was to 25 degrees. Left lateral flexion was to 32 degrees and right lateral flexion was to 25 degrees. Left rotation was to 40 degrees and right rotation was to 50 degrees. There was exquisite pain objectively on all movements of the lumbar spine. No muscle atrophy of the lower extremities was noted. Patellar and Achillis reflexes were average bilaterally. Straight leg raising was negative bilaterally. Muscle strength of both legs was normal. The diagnoses were lumboparavertebral joint disease of the lumbar spine and degenerative joint disease of the lumbar spine by X-rays. In May 1995 a private physician wrote that he treated the veteran for low back pain and severe muscle spasm. The August 1995 private X-rays revealed left paracentral disc herniation at L4-L5 with compression upon the left exiting nerve root. The examination was otherwise essentially unremarkable. VA outpatient treatment records, dated November 1996 through December 1996, revealed that the veteran complained of low back pain. Upon examination no deformities were noted. There was increased tenderness with superficial palpation of the low back. Flexion was within normal limits with pain and lateral flexion was within normal limits with pain. The impression was symptomatic herniated nucleus pulposus at the L4-L5. 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, the veteran has alleged that he suffered a back injury secondary to a fall in 1983. The United States Army active duty or active duty for training medical records does not show that the veteran sustained a back injury or suffered from a disease affecting his back. The Puerto Rico Army National Guard medical records show that the veteran was seen for a low back meniscus injury secondary to a fall in January 1983. X-rays of the lumbosacral were negative for trauma but showed several congenital defects. The records indicate that he currently has complaints of low back pain and has a current diagnosis of symptomatic herniated nucleus pulposus at the L4-L5. However, there is no objective evidence of any relationship between his current back disability and a disease or injury suffered while on active duty with the United States Army or the Unites States Army National Guard. Although the Puerto Rico Army National Guard medical records show that the veteran was seen for a low back meniscus injury secondary to a fall in January 1983, this was not during a period of service with the United States Army (May 1974 to May 1976) or during a period of active duty for training with the United States Army National Guard (August 1986 to December 1986). The RO attempted to obtain additional private medical records indicated by the veteran, in March and September 1995. However, the private physicians did not reply to the RO's request for the veteran's medical records. Consequently, the RO fulfilled its' duty to inform that appellant that his application is incomplete and of actions necessary to complete it in the March 1996 rating decision. 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). 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). II. New and Material 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, which 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. Derwinski, 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, 1131 (West 1991). The evidence, which was in the file at the time that this case was considered by the RO in March 1981, will be briefly summarized. There were no service medical records available except for the induction examination, which did not show abnormal findings. On the November 1980 VA general medical examination the veteran gave a history of a nervous breakdown in 1975, when he also had hepatitis. Upon physical examination laboratory tests were within normal limits. The psychiatric examination revealed history and findings compatible with diagnosed undifferentiated type schizophrenia. The evidence submitted since the March 1981 denial included the Puerto Rico Army National Guard medical records dated August 1973 to March 1988; a VA examination dated February 1995; and private medical reports dated December 1993 to September 1995. The RO attempted to obtain additional private medical records indicated by the veteran, in March and September 1995. However the private physicians did not reply to the RO's request for the veteran's medical records. The records submitted by the Puerto Rico Army National Guard did not indicate a diagnosis or treatment for a nervous disorder. A June 1982 health questionnaire for dental treatment, submitted by the Puerto Rico National Guard, showed that veteran reported that he was hospitalized in 1975 for hepatitis. The Puerto Rico Army National Guard medical records dated November 1986 revealed that the veteran complained of diarrhea for two days. The assessment was a viral, acute exacerbation. The private medical records were silent as to hepatitis or its residuals. The private medical records dated May 1994 to February 1995 showed treatment for depression and that a paranoid psychosis and a bipolar disorder were to be ruled out. The RO refused to reopen the veteran's claim for entitlement to service connection for a nervous disorder and hepatitis in March 1996. The evidence submitted since the March 1996 denial included a health questionnaire for dental patients dated May 1977; private medical records dated March 1984; Forms DD 689 for June 1983 to November 1986; DA Form 2173 dated March 1988; one sheet from State Farm Insurance Fund dated March 1995; two illegible emergency care and treatment sheets received by the RO in April 1996; VA outpatient treatments records dated November 1996 to December 1996; and multiple duplicate photocopies of evidence already in the veteran's claim's folder and previously considered. The private medical records dated March 1984; Forms DD 689 for June 1983 to November 1986; DA Form 2173 dated March 1988; one sheet from State Farm Insurance Fund dated March 1995; two illegible emergency care and treatment sheets received by the RO in April 1996; VA outpatient treatments records dated November 1996 to December 1996; and multiple duplicate photocopies of evidence already in the veteran's claim's folder and previously considered do not show complaints, findings, treatment or diagnosis of a nervous disorder or hepatitis. On the health questionnaire for dental patients, dated May 1977, the veteran reported treatment for hepatitis in Germany in September 1975. In his May 1997 substantive appeal the veteran wrote that he was treated for a nervous disorder in May 1976 shortly after his separation from service. He indicated that he is currently being treated for a nervous disorder. The veteran asserted that he was hospitalized in Frankfort Germany for hepatitis. After a careful review of the evidence of record, it is found that the additional evidence, which the veteran has submitted, is not "new and material." Accordingly, his claims are not reopened and the March 1981 decision of 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). The evidence previously submitted in this case did not show treatment for or a diagnosis of a nervous disorder while the veteran was on active duty or active duty for training. The evidence previously submitted did not show treatment for or a diagnosis of hepatitis or its residuals. The evidence presented since the last disallowance shows treatment for depression and a viral infection. The diagnosis of depression was not during the veteran's period of active duty or active duty for training. The viral infection was diagnosed during the veteran's period of active duty for training with the United States Army National Guard. However, the infection was not diagnosed as hepatitis or its residuals. Although some of the evidence submitted subsequent to the March 1981 RO denial was not previously submitted and mentions depression and a viral infection it is cumulative and redundant. This evidence does not bear directly or substantially upon the specific matters under consideration and by itself or in conjunction with evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. ORDER A well-grounded claim not having been submitted, service connection for a back disability is denied. New and material evidence not having been submitted to reopen the claim for service connection for a nervous disorder and hepatitis, the benefit sought on appeal must be denied. C. P. RUSSELL Member, Board of Veterans' Appeals