BVA9502260 DOCKET NO. 89-48 443 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a left arm disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran served on active duty from August 1945 to October 1947. He was in the United States Navy Reserve from November 1947 to October 1952. In April 1983, the Board of Veterans' Appeals (Board) denied service connection for a left arm disorder. In 1988, the veteran requested reopening of his claim for service connection for a left arm disorder. This appeal arises from an October 1988 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that determined that no new and material evidence had been submitted to reopen the claim, and an April 1989 rating decision that denied benefits under 38 U.S.C.A. § 1151 (West 1991) for a cervical spine disorder resulting from a cervical diskectomy performed in July 1981 and for hallucinations and seizures resulting from a myelogram performed in August 1982. The Board remanded the case to the RO in June 1990 and July 1991 for additional development. Since the final Board decision in 1983, denying service connection for a left arm disability, evidence has been received, at least some of which satisfies the definition of new and material. A photograph of the veteran allegedly showing him receiving treatment for a left arm disorder while in service indicates that he possibly had a left arm fracture in service as he contends. He has also testified, and has submitted medical statements explaining how service department records to the contrary might be wrong. The credibility of such evidence is presumed, for purposes of reopening only, and it is considered new and material because, when considered with the evidence of record in 1983, it raises a reasonable possibility of a change in the prior adverse decisions. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1991); Justus v. Principi, 3 Vet.App. 510 (1992). Thus, I construe this issue as shown on the first page of this decision. Having decided that the claim for service connection for a left arm disability is reopened, the next question is whether the Board can conduct a de novo review at this time. Bernard v. Brown, 4 Vet.App. 384 (1993). I conclude that I may proceed without prejudice to the veteran, since the Board and the RO previously provided the veteran and his representative notice of the requirements for establishing entitlement to service connection. Moreover, it appears clear to me that the primary argument by the veteran at various hearings at the RO focuses on the merits of service connection for a left arm disability as opposed to the question of whether new and material evidence has been presented to reopen a claim for service connection for a left arm disability. Thus, there is no prejudice to the veteran based on my current de novo appellate review. I recognize the better practice of notifying the veteran of all matters concerning his claim prior to appellate consideration, but in my judgment another remand of this case to the RO for this purpose is not necessary to ensure due process of law in this instance. See Curry v. Brown, No. 91-504 (U.S. Vet. App. Oct. 5, 1994). In this case, the slight and doubtful benefit of a remand is outweighed by the additional delay it would entail in an appeal that began five years ago. Also at issue in this appeal, but not addressed in this decision, is the veteran's appeal for benefits under 38 U.S.C.A. § 1151 (West 1991) for a cervical spine disorder allegedly resulting from a cervical diskectomy performed by VA in July 1981, and hallucinations and seizures allegedly resulting from a myelogram performed by VA in August 1982. As the RO notified the veteran in October 1992, action on these issues is being deferred by VA, pending the development of agency guidelines following a decision by the United States Supreme Court. When those guidelines are developed, further action will be taken on the veteran's appeal. No action is necessary on his part. In various documents, including a VA Form 9 dated in October 1993, and letters dated in April 1994, the veteran seems to be making additional claims. These claims include service connection based on radiation exposure, benefits under 38 U.S.C.A. § 1151 for various disorders resulting from VA medical treatment, and benefits based on clear and unmistakable error in prior rating decisions. These matters have not been adjudicated and are not considered issues that are inextricably intertwined with the issue being considered in this decision. Harris v. Derwinski, 1 Vet.App. 180 (1991). Under the circumstances, the Board will not address these matters, and they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he fractured his left forearm in service and requests service connection for a left arm disability. He maintains that he did not undergo a service department medical examination at the time of his discharge from service in October 1947, and that the report of such an examination should not be considered credible. He requests service connection for a left arm disability based on the other evidence of record. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for a left arm disability. FINDINGS OF FACT 1. A left arm disability was not present during service. 2. Any arthritis of a joint of the left upper extremity was not demonstrated during the first post-service year. 3. A current chronic left arm disability was not caused by any disease or injury during service. CONCLUSION OF LAW A chronic left arm disability, including any bursitis of the left shoulder, residuals of rotator cuff tear of the left shoulder, and residuals of fracture of the left ulna and radius, was not incurred in or aggravated by active service; nor may any arthritis of a joint of the left upper extremity be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101,1110, 1112, 1113 1131, 1137 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual Background The veteran served on active duty from August 1945 to October 1947, and the service records show that he was born in July 1928. Various replies from the National Personnel Records Center (NPRC) note that the veteran's service medical records have been sent to the RO and that he had no additional active service. The replies from the NPRC do not indicate the existence of any additional service medical records. The service records show that the veteran was in the United States Navy Reserve from November 1947 to October 1952. The service medical records do not show the presence of a left arm disability. At the time of his medical examination for entry into service in August 1945, his height was reported as 65 inches and his weight as 161 pounds. His blood pressure was 130/60 and his pulse before exercise was 96. Teeth numbers 1, 4, 5, 12, 13, 16, 20, 29, 31, and 32 were missing. (The upper teeth were numbered 1 to 16 from right to left, and the lower teeth were numbered 17 to 32 from right to left.) The report of the veteran's medical examination at the time of his discharge from service in October 1947 notes that teeth numbers 4, 5, 13, 18, 20, 29, and 31 were missing. His extremities were normal. His height was 68 inches and his weight 160 pounds. His blood pressure was 130/86 and his pulse before exercise was 76. A photocopy of an unsigned report on service department stationery, dated in May 1948 (received from the veteran in 1989), notes that medical records were received from Harvey Shapiro, M.D., R. Cirincione, M.D., and E. Gillette, M.D., concerning the veteran, and referring to an examination in November 1947. It was noted that there was no doubt as to his sustaining a compound fracture of the radius and ulna of the left arm in July 1946, as shown by a well-healed scar and with associated severe tendinitis and lateral humeral epicondylitis that resulted in radiating pain throughout the left arm. A service department report shows that the veteran underwent examination for entry onto active duty in June 1951. His organization unit was listed as "inactive". As part of his medical history he stated: "at 22 yrs - my arm was broken - compound fracture." The examiner elaborated, noting "compound fract[ure] left arm, 1949." On examination, a scar or left arm abnormality was not found. Teeth numbers 1, 15, 16, 31, 29, 20, and 18 were missing. (The upper teeth were numbered 1 to 16 from right to left; and the lower teeth were numbered 17 to 32 from left to right. The corresponding numbers of the missing teeth under the system previously used would be 1, 15, 16, 18, 20, 29, and 31.) His blood pressure was 140/50 and his pulse before exercise was 96. His height was 66 inches and his weight 153 pounds. He was found disqualified for entry onto active duty. The veteran submitted his initial application for VA benefits in September 1972. In it, he requested pension. He did not report any problems with his left arm. In connection with this claim, medical records were received from St. Joseph Hospital concerning treatment in 1972 for a back disability. The history obtained at that time included: "Previous accidents: Korea L[eft] arm gunshot wound." The veteran's initial claim for service connection for a left arm disability was received in 1981. Photocopies of private medical reports, received from the veteran, show that he was treated for various unrelated disorders from 1972 to 1981. An unidentified report of his treatment in October 1973 notes a history of a left arm injury sustained in 1946 while in service. Clinical findings concerning the left arm were not reported. It was noted that insurance would be filed separately for tendinitis. Statements were received from acquaintances and relatives of the veteran in March 1981. Statements from the veteran's mother and brother, Ralph, are to the effect that the veteran had a left arm scar after discharge from service that was not present prior to his enlistment. The statements from acquaintances of the veteran were also to the effect that the veteran had a left arm scar after discharge from service. The statements from the acquaintances of the veteran did not contain the addresses of the signatories. A private medical report, dated in March 1981, notes that the veteran was then receiving treatment for bursitis of the left shoulder. Various statements from fellow servicemen and acquaintances of the veteran were received in July 1983. They include a number of identical statements from fellow servicemen which are to the effect that the veteran fractured his left arm in service in July 1946 and received medical treatment for residuals of this fracture. Ida Valente reported being a registered nurse for the veteran's family doctor, and having first-hand knowledge of the veteran's health since before he went into the service. She related that the veteran wrote a letter while in service in which he reported breaking his left arm. This nurse also reported that the veteran had a left forearm scar after discharge from service. The addresses of the signatories were not reported on these statements. VA and private medical reports show that the veteran was examined and treated for various disorders in the 1980's. A report from Leslie Pratt Spelman, M.D., dated in March 1984, notes that the veteran's records were reviewed and it was opined that the evidence indicated he had sustained left forearm trauma that induced tendinitis and osteoarthritis. It was opined that service connection should be granted for these disorders. Reports from Roy C. Springer, M.D., dated in January and February 1986, note that the veteran had been a patient since 1983. In the February 1986 letter, Dr. Springer indicated that a review of the veteran's record indicated that the alleged medical examination in 1947 in service showed discrepancies when compared to reports of his examinations in 1945 and 1951, and lacked credibility. Dr. Springer reported defects in the dental charts, differences in height, and vital blood pressure and pulse signs. Dr. Springer reported that he had served in the United States Navy in Vietnam as a medical officer, and could attest to the qualifications of a nurse who was acquainted with the veteran and reported medical findings in a statement previously submitted. He also reported that the veteran's statement on a report of examination in June 1951 concerning sustaining a fracture of the left arm at the age of 22 was apparently erroneous, because medical reports of his treatment around his 22nd birthday do not corroborate such an incident. These reports were on correspondence similar to correspondence previously used by the veteran and not on the official correspondence of the doctor. A report of field examination, dated in April 1986, shows that a VA field examiner interviewed Dr. Springer. The doctor stated that the medical information from a medical report, dated in January 1986, allegedly signed by him, was basically correct, and that the veteran was a very sick person. Dr. Springer reported that he had never been on active duty in the military, that he had not signed the medical document of January 1986, that the January 1986 correspondence was not his, and that he had not written the contents of this document. A private medical report of the veteran's hospitalization in June 1986 notes his complaints of left shoulder pain. He stated that this pain began around August 1985. X-ray examinations were done, revealing a moderate amount of bursitis. The left shoulder was subsequently injected with cortisone and Xylocaine on two occasions. The pain was still present, with the patient having only a minimal amount of relief with cortisone injections. It was decided that there was a tear in the rotator cuff, and for this reason he was admitted to the hospital. The impressions included tear of the left rotator cuff and probable bursitis of the left shoulder. During hospitalization he underwent repair of the rotator cuff of the left shoulder. A photograph was received in July 1988. The photograph shows an individual, whose face is obscured, supine on a table or bed and being attended by three people, two of whom are manipulating his left arm. The setting appears to be a medical one, and the personnel appear to be in military-type clothing. The veteran testified at a hearing at the RO in January 1989. He stated that the report of the 1947 service department examination was not his. He stated that he was discharged early from active service due to residuals of fracture of the left arm. He stated that he did not receive any treatment by the VA for residuals of a left arm fracture after discharge from service in the late 1940's. He stated that the above-described photograph, submitted in 1988, had been taken in 1946 while he was in service. He reported that he was the individual on the table receiving treatment. He also stated that he was in the Navy Reserve from 1947 to 1952. The veteran testified at another personal hearing at the RO in July 1989. He stated that the reports of the physicians named in the May 1948 service department record who allegedly treated him after discharge from service were not available because the physicians were deceased and/or their records were otherwise not available. He testified that he had been a reservist from 1947 to 1952, attending meetings twice monthly. Hrng. Trnscrpt. 20- 22. The Board remanded the case to the RO in July 1991 for additional development, including verification of various documents in the claims folder. A report of field examination, dated in September 1991, shows that a VA field examiner attempted to verify various evidence in the veteran's claims folder. It was noted that reports of Dr. Springer, dated in January and February 1986, were seen and authenticated by him. It was noted that Dr. Spelman did not have a business address and an attempt to contact him at his personal address would be made. It was recommended that the veteran be contacted to obtain the address of an acquaintance, and that letters be mailed directly to other individuals to authenticate other evidence. In December 1991, the RO sent a letter to the veteran requesting the addresses of various people who had made statements on his behalf concerning his claims for VA benefits. In the same month, a reply was received from the veteran indicating that many of the people who had submitted statements on his behalf were now deceased or that their addresses were unknown. He did provide the address of a brother who had previously submitted information on his behalf. In March 1992, the RO sent a letter to Dr. Spelman requesting him to verify letters previously submitted by him. The record does not show a reply from this physician. The veteran was notified of the lack of response from this doctor in September 1992. In March 1992, the RO sent a letter to the veteran's brother requesting him to verify previous (undated) correspondence, allegedly received from him. The veteran's brother returned the RO's letter in April 1992 with notations. He refused to verify the previous letter, stating that the only thing he could verify was that the veteran was his brother. He stated that he had not seen the veteran in over 30 years and had only spoken to him twice in that period of time. He stated that it was the VA's job to believe or not believe the evidence submitted with regard to his brother's claim. A report of field examination, dated in June 1992, notes that Dr. Springer was contacted by a VA official. He stated that information in a previous document, dated in January 1986, correctly described the veteran's medical condition. He stated that the veteran was a very sick person and that he was still being treated. A letter dated in September 1992, signed by the veteran's brother, relates that he had not previously cooperated with VA because he didn't want to jeopardize his brother's claim. He stated that he saw the photograph of his brother receiving treatment for a fracture sustained in 1946, that his brother had a long scar after discharge from service, and that his brother was treated by Dr. Renaldi for his arm after service. The veteran testified at a hearing at the RO in November 1992. He read from a letter, dated in September 1992, allegedly written by his brother. It was reported that the brother had seen photographs of the veteran allegedly being treated for a fracture sustained in 1946, that the veteran had a scar that was plainly evident from surgery when he returned home in November of 1947, and that his brother was treated by a doctor after service. It was also stated that his brother had not seen the veteran for 30 years and that he could not attest as to the veteran's present physical condition. The veteran testified that he had been on active duty from 1947 to 1952, but that such duty was "classified." Hrng. Trnscrpt. 6-9. B. Legal Analysis The veteran's claim for service connection for a left arm disability is well-grounded, meaning it is plausible. All relevant evidence for equitable disposition of this claim has been obtained and no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In order to establish service connection for a disability, the evidence must show the presence of the disability and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for arthritis will be presumed if it becomes manifest to a degree of 10 percent within 1 year from date of termination of active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307. 3.309. The service records do not show treatment for a left arm disability. While the veteran asserts that he sustained a fracture of the left arm in service, the service records do not support this assertion. The 1947 discharge examination shows that the extremities were normal. Purported statements from fellow servicemen of the veteran are also of record and are to the effect that the veteran sustained a fracture of his left arm in service and that he received medical treatment in service for residuals of this fracture, but the statements from these signatories do not contain their addresses and the veteran has not provided additional information to VA in order to verify these statements. Nor do the service records show that the veteran received medical treatment for residuals of a fracture of the left arm. Since the purported statements from fellow servicemen of the veteran cannot be verified and are not consistent with official service records, I do not consider them credible. An unsigned report, dated in May 1948 (received from the veteran in 1989), indicates that medical records of three physicians were reviewed and that the veteran was examined in 1947. This report indicates that the examination and medical records revealed that the veteran had sustained a compound fracture of the radius and ulna of the left arm in July 1946, and then had a well-healed scar and associated tendinitis and lateral humeral epicondylitis that caused radiated pain throughout the left arm. The veteran testified at a hearing in July 1989 that reports from the physicians alluded to in the May 1948 report are not available in order to verify the clinical findings noted in that report and the NPRC has indicated that there are no additional medical records concerning the veteran. Subsequent medical records do not show the presence of any left arm disorder until the 1980's when bursitis of the left shoulder, osteoarthritis, and tendinitis were reported. Since the information in the May 1948 unsigned report cannot be verified, is inconsistent with the official service department records (which were obtained through normal channels), and was received from the veteran, I do not consider it credible. Moreover, this unsigned document is unlike anything I have reviewed in many years of reviewing service department records. The combination of tone, content, format, and closing seems inauthentic. For these reasons, I reject this document. Reports from Dr. Springer indicate that the veteran's medical records were reviewed and are consistent with incurrence of a fracture of the left arm in service. This physician notes discrepancies in various service department reports of examinations, and indicates that the report of the veteran's medical examination in October 1947 at the time of his discharge from service is not credible because it contains findings inconsistent with service department reports of examinations performed in August 1945 and June 1951. While the reports of these examinations show some differences in the veteran's height, blood pressure, pulse, and number of lost teeth, they are considered credible, reflecting harmless errors, fluctuations in the veteran's blood pressure and pulse, and differences in use by the service department in recording missing teeth. While some of the differences in the findings noted in these reports cannot be explained, the overall findings are essentially consistent and reflective of the veteran's medical condition. Moreover, the identifying information on the examination forms reflects the correct name, service number, and date of birth. Dr. Springer also indicates that the statements of the veteran's fellow servicemen and acquaintances should be believed because some of these acquaintances have had medical training. Since the signatories cannot be contacted to confirm their statements and reported findings which are not consistent with official service department records, those statements are not considered credible. Dr. Springer also indicates that the veteran's statement on a report of medical examination in 1951 that he fractured his left arm at the age of 22 (around 1949-50, based on his date of birth) is not consistent with the overall evidence and that there are no medical records (e.g., local hospital records) to support this statement of treatment for a left arm fracture around 1950. Nevertheless, I find the veteran's 1951 statement to be credible and probative because it was made prior to the claim for service connection for a left arm disability, and is consistent with the service medical records which do not indicate the presence of any such disorder in service. The reports of Dr. Springer in 1986 amount to little more than medically informed speculation. He does not assert direct knowledge of the events in question. He presents no direct evidence that the veteran injured his arm while on active duty. Rather, he attacks the evidence to the contrary, largely on the basis of the previously discussed discrepancies in the 1947 separation examination report. For the reasons stated above, I reject his analysis as being of significantly less weight than the official service department records. The veteran submitted a photograph which, he testified, shows him receiving medical treatment for a left arm condition in service in 1946. The face of the person being treated is not shown, and there is no confirmation of the veteran's testimony that he is the person receiving treatment except the September 1992 letter from his brother. The September 1992 letter contradicts, implicitly if not explicitly, the brother's annotation on the March 1992 RO letter. In view of the contradictions, I find the brother's letters to be without credibility. The most credible evidence on file is the service medical records, which show that the veteran did not have a left arm disability when separated from active duty in 1947, and did have a history of a compound fracture of the bones of the left forearm when examined for reentrance onto active duty in 1951. The latter examination shows the incurrence of a post-service fracture both by the date given (1949) and the age of occurrence (22 years). The veteran has argued at length why the examination reports should be discounted. But his arguments and testimony are rejected. I note that he has tried to establish that he was in fact on active duty from 1947 to 1952, but has admitted that he was merely in the Reserve at that time. Compare July 1989 hearing transcript, p. 18, with November 1992 hearing transcript, p. 6. When treated at St. Joseph Hospital in April 1972 for a back problem, he described his arm injury as a gunshot wound he received in Korea; now he describes it as an injury that occurred in Hawaii, when a box fell on him. Because of such contradictions, and the differences between his testimony and the official records, I find the veteran's testimony not credible. The document dated in 1948, purportedly discovered by the veteran's son in 1989, is an unverified photocopy, and lacks other indicia which might support its authenticity. I find that the credibility of the evidence supporting the veteran's claim is far less than that of the records from the service department, and that the preponderance of the evidence is therefore against his claim. The Board recognizes that some of the evidence indicates that the veteran has osteoarthritis. Any osteoarthritis of the left upper extremity, if present, was not shown in service or within one year of the veteran's discharge from service. Thus, service connection is not warranted for such a disorder on a presumptive basis. The evidence is not in relative equipoise concerning the claim for service connection for a left arm disability. Hence, the veteran is not entitled to favorable resolution of this claim based on reasonable doubt. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence is against the claim and it must be denied. ORDER Service connection for a left arm disability is denied. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.