Citation Nr: 0000012 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 95-16 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 2. Whether new and material evidence has been submitted to reopen a claim for residuals of injury to the left lung. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESSES AT HEARINGS ON APPEAL Appellant, appellant's spouse and daughter ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran had active service from June 1952 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In the December 1993 the RO determined that the veteran had not submitted new and material evidence with which to reopen his claim for entitlement to service connection for a left lung injury and for a back injury. In September 1997, a hearing was held in Washington, D.C., before a member of the Board, and in June 1999, a videoconference hearing was conducted over which another member of the Board presided. Accordingly this decision will be promulgated by the two Board members who presided at the veteran's hearings. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder was previously before the Board in February 1998, at which time the case was Remanded for due process purposes. FINDINGS OF FACT 1. All of the relevant evidence necessary for an equitable disposition of the veteran's claims has been obtained. 2. Entitlement to service connection for a low back injury was denied by the RO in March 1989. The veteran did not appeal that decision and that decision is final. 3. The evidence received subsequent to the unappealed March 1989 RO decision is so significant that it must be considered in order to fairly decide the merits of the claim. 4. Entitlement to service connection for a lung injury was denied by the RO in February 1989. The veteran did not appeal that decision and that decision is final. 5. The evidence received subsequent to the February 1989 RO decision is so significant that it must be considered in order to fairly decide the merits of the claim. 6. The veteran' claim for service connection for residuals of an injury to the left side of his chest is plausible. CONCLUSIONS OF LAW 1 The evidence received subsequent to the March 1989 RO decision is new and material, and serves to reopen the claim for entitlement to service connection for a low back disability. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The evidence received subsequent to the February 1989 RO decision is new and material, and serves to reopen the claim for entitlement to service connection for residuals of injury to the left lung. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim for service connection for the residuals of an injury to the left lung is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately displayed, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The evidence of record at the time of the February 1989 and March 1989 RO decisions is briefly summarized. The service medical records, which were received in January 1989, show that the enlistment examination clinically evaluated all pertinent systems as normal. The veteran was seen at sick bay in August 1952 for pain in his back. He was seen in July 1953 and records reveal that he had injured his back while handling stores and he exhibited limited motion and pain on bending forward. He was treated in February 1954 for fractures of the eighth and ninth ribs, right side. The separation examination, dated in December 1955, clinically evaluated all pertinent systems as normal. The veteran was hospitalized at a private facility in July 1985 at which time the diagnoses included suspected L5-S1 disc rupture with sciatica. Received in December 1988 were claims for service connection for a back injury and lung injuries. The veteran stated that he was treated for a lung injury in 1953/1955 while aboard ship. In a January 1989 statement the veteran reported that he injured his back in 1953 or 1954 when he fell approximately 35 or 40 feet. He indicated that he also sustained three broken ribs as a result of the fall. Entitlement to service connection for a lung injury was denied by a rating action, dated February 1, 1989. At that time the RO found that the service medical records were negative for a lung injury. The veteran was notified of that decision and of his appellate rights in February 1989. He did not appeal that decision. Received on February 10, 1989 was a VA examination report dated in January 1989. At that time the veteran gave a history of chronic back pain extending to his arms and legs. He stated that he injured his left chest in 1953 or 1954 when he fell off a tank into a whaleboat. He indicated that he also sustained three broken ribs as a result of the fall. An examination of the back was not conducted. The diagnosis was chronic obstructive pulmonary emphysema, secondary to tobacco abuse and exposure to textile fiber dust; residuals from an old contusion to left chest wall; and calcified left parietal pleural plaque, post traumatic. Also received on February 10, 1989 were private medical records showing treatment for chronic low back pain during 1988. Entitlement to service connection for a back injury and residuals of fractured ribs was denied by the RO in March 1989. At that time the RO determined that the service medical records were negative for complaints and treatment for an injury to the back or fractured ribs. It was further determined that the recent VA examination showed no diagnosis of any residuals of a back injury or fractured ribs. He was notified of that decision and of his appellate rights, but he did not appeal this decision. Thus, the February and March 1989 rating actions are final. See 38 U.S.C.A. § 7105 (West 1991). However, the veteran may reopen his claims by submitting new and material evidence. 38 U.S.C.A. § 5008 (West 1991). New and material evidence means evidence not previously submitted to agency decision makers 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. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that, in determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. Justus v. Principi, 3 Vet.App. 510 (1992). However, that evidence must be competent in order for the presumption to attach. LeShore v. Brown, 8 Vet.App. 406, 409 (1995). VA is directed to consider the evidence that has been added to the record since the last final disallowance of the claim on any basis. Evans v. Brown, 9 Vet.App. 273, 285 (1996). The evidence received subsequent to the February and March 1989 RO decisions, includes a VA examination report dated in January 1989 and VA and private outpatient treatment and hospital records from dated from November 1956 to January 1999. These records show that he was treated at a private facility in November 1956 for a sharp pain in his back and right chest on inhaling. Chest x-rays of the lung fields were normal. The veteran was hospitalized later in November 1956 with a diagnosis of diaphragmatic pleurisy, type undetermined. Chest x-rays were normal. He was hospitalized at a private facility in March 1966 for investigation of a process in his left lung. The clinical history indicates that he fell on board ship during service and injured his ribs. He underwent a bronchoscopy. The findings were interpreted as compatible with some chronic endobronchial disease without evidence of significant ulceration, erosion, stenosis, or neoplasm. November 1978 chest x-rays showed blunting of the left costophrenic angle secondary apparently to an old pleural reaction. There were calcifications in the pleura on the left side. Subsequently, the veteran received intermittent treatment for various problems at VA and private facilities, to include low back and lung complaints. By rating action dated in February 1995, the RO granted entitlement to service connection for residuals of fractured right 8th and 9th ribs, claimed as injury to the left chest wall and ribs. Thee veteran testified at a hearing before a hearing officer of the RO in October 1995. He testified that he had injured his back in 1952 or 1953 when he fell off a quarterdeck of a tanker into a motor launch. He stated that he injured his rib at the time and was more concerned with getting treatment for that. He indicated that he was treated with ace bandages and morphine and was placed on light duty. The veteran also asserted that he reinjured his back a couple more times during service, including one occasion wherein his ship was taking on storage from a transport ship and he hurt his back. He indicated he has continued to have problems with his back. He further stated that his left lung was calcified as a result of the injury sustained in service in 1952 or 1953 when he fell off a quarterdeck of a tanker into a motor launch. In September 1997, the veteran and his spouse testified at a hearing before a member of the Board sitting at Atlanta, Georgia. The veteran testified that he injured his back in a fall while on board a ship during service. He indicated that he was treated with ace bandages and experienced pain in his back. The veteran also asserted that he injured his back on two or three separate occasions. He indicated that X-rays of his back were not taken during service, or at the time of his separation. He indicated that he first saw a chiropractor sometime during 1956 and has had problems with his back ever since. The veteran's spouse testified that she had been married to him for 19 years, but that she did not know him during his period of active service. She indicated that she was not aware of any post-service injuries to his back. A private medical record dated in March 1998 indicates that the veteran had extensive pleural calcification, which could have related to a traumatic incident resulting in bleeding into the pleural space. He also indicated that it was impossible to tell from his perspective at this time what specific incident may have caused the abnormality, but it certainly could have been related to an accident of any kind involving chest trauma. A VA examination report, dated in January 1999, contains diagnoses to include early degeneration of the L5-S1. In June 1999, the veteran, his spouse, and his daughter testified at a videoconference hearing before a member of the Board. The veteran testified that he injured his back between 1952 and 1955 during his period of active service. The veteran indicated that his back was weaker since the inservice injuries, which then progressed subsequent to his separation from service. He further stated that the calcification in his left lung was the result of the rib injury he sustained during his period of active service. He indicated that when his ribs broke, his lung was punctured causing the calcification that is presently apparent in the left lung. The veteran indicated that he has been receiving Social Security disability benefits since 1985. The veteran's spouse testified that she had been married to him since 1978 and that she has witnessed his low back problems since that time. She testified that his mother had told her that the veteran had had blood drawn out of his lung subsequent to his separation from service. The veteran's daughter testified that she could recall her father having back problems as far back as 1968, when she was ten years old. She indicated that his back problems have persisted since that time. I. Low Back Disability The March 1989 decision by RO, which denied service connection for a back injury, was based on the fact that the service medical and postservice medical records showed no evidence of a back disability. The evidence received since that determination includes VA and private medical records, which clinically confirm for the first time the presence of a chronic low back disability. These records also indicate that the veteran complained of back pain in November 1956, shortly after his release from active duty. Accordingly, the Board finds that evidence submitted subsequent to the March 1989 decision is new and the veteran's claim is reopened. II. Residuals of Left Lung Injury The RO decision, dated on February 1, 1989, which denied service connection for a lung injury, was based on the fact that the service medical records were negative for a lung injury. The evidence received since that decision includes VA and private medical records, which confirm for the first time the presence of a disability involving the left lung. The Board finds that this evidence is new and material and the veteran's claim is reopened. In Elkins v. West, 12 Vet. App. 209 (1999) the United States Court of Appeals for Veterans Claims (Court) held that, in making a determination as to whether new and material evidence has been submitted to reopened a previously denied final decision, a three step process is required. It must first be determined whether new and material evidence has been submitted. If new and material evidence has been submitted, it must be determined whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the service medical records reveal that the veteran sustained an injury to the chest area. The treatment records indicate that the eight and ninth ribs on the right side were fractured. The private medical record dated in March 1998 indicates that the veteran had extensive pleural calcification which could have related to a traumatic incident resulting in bleeding into the pleural space. Although the service medical records indicate an injury to the right side of the chest, this is the only chest injury the veteran experienced per the evidence of record. Accordingly, the Board finds that the evidence tends to show a relationship between the left lung disorder and service. Accordingly, the claim is well grounded. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a low back disability is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for residuals of an injury to the left lung is reopened. The claim for entitlement to service connection for residuals of an injury to the left lung is well grounded, and to this extent only the claim is granted. REMAND I. Low Back Disability As previously indicated, the Board has determined that new and material evidence has been received with regard to the veteran's claim for service connection for a low back disability, and that claim has accordingly been reopened. As indicated in Elkins v. West, 12 Vet. App. 209 (1999) the Court held that that in making a determination as to whether new and material evidence has been submitted to reopened a previously denied final decision, a three step process is required. It must first be determined whether new and material evidence has been submitted. If new and material evidence has been submitted, it must be determined whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is well grounded, the merits of the claim will be evaluated after the duty to assist under 38 U.S.C.A. § 5107 (b) (West 1991) has been fulfilled. See Bernard v. Brown, 4 Vet. App. 365, 367 (1991). In order to have a well grounded claim there must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). II. Residuals of Left Lung Injury Having determined that the veteran's claim for entitlement to service connection for residuals of an injury to the left lung is well grounded, the VA has a statutory duty to assist the veteran in the development of evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991). As indicated above, the service medical records reveal that the veteran sustained a chest injury during his period of active service. A VA examination report dated in January 1989 indicates that the veteran had a calcified left parietal pleural plaque, post traumatic. The private medical report dated in March 1998 indicates that the veteran had extensive pleural calcification, which could have related to a traumatic incident resulting in bleeding into the pleural space. The Board is of the opinion that additional development, to include a thorough and contemporaneous examination, is required prior to further adjudication of this matter. Littke v. Derwinski, 1 Vet. App. 90 (1990). Additionally, the veteran reported that he had been receiving disability benefits from the Social Security Administration since 1986. The Board believes that these records should be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED to the RO for the following development: 1. The RO should inform the veteran of the type of the evidence needed to establish a well-grounded claim for service connection for a low back disability. Such evidence would include a medical opinion relating the current low back disorder to his military service. 2. The RO should furnish the appropriate release of information forms in order to obtain copies of all VA, military, and private medical records pertaining to treatment for his left lung disability since his separation from active duty to the present that are not already on file. 3. The RO should obtain any current treatment records from the VA facilities in Birmingham, Alabama, and in Decatur. 4. The RO should take the appropriate action to obtain a copy of the SSA decision granting disability benefits and the evidence on which that decision was predicated. 5. A VA examination by an appropriate specialist should be conducted in order to determine the nature, severity and etiology of the veteran's left lung disability. The examiner should be provided with the veteran's claims folder and a copy of this Remand for review in conjunction with the examination. All appropriate tests and studies should be accomplished at this time. Following the examination it is requested that the examiner render an opinion as to whether it is as likely as not that any current left lung disability is related to the veteran's military service, to include the injury sustained in 1954. The examiner should also indicate whether the veteran' service connected residuals of fractured 8th and 9th ribs are causally related to or aggravate any current left lung disability. The examiner's attention is directed to the January 1989 VA examination report and the March 1998 private medical opinion. A complete rationale for any opinion expressed should be included in the examination report. 6. Following any additional development deemed appropriate, the RO should readjudicate the issues in appellate status, to include consideration of Elkins v. West, 12 Vet. App. 209 (1999). 7. If the benefits sought are not granted, the veteran and his representative should be furnished with a Supplemental Statement of the Case, and opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. - _____________________________ ___ ROBERT P. REGAN Member, Board of Veterans' Appeals _____________________________ ___ BETTINA S. CALLAWAY Member, Board of Veterans' Appeals