Citation Nr: 0007397 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-00 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Whether new and material evidence has been submitted to reopen a claim for service connection for hepatitis. Whether new and material evidence has been submitted to reopen a claim for service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from November 1969 to July 1971. This matter comes on appeal from an August 1997 rating decision by the St. Louis VA Regional Office. FINDINGS OF FACT 1. Service connection for hepatitis and a bilateral ankle disability was denied in an unappealed rating decision in February 1972. 2. Evidence submitted subsequent to the February 1972 rating decision is not relevant or probative and is not of such significance that it should be considered to fairly decide the merits of the claim. 3. Chronic hepatitis had its onset in service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim for service connection for a bilateral ankle disability has not been submitted. 38 U.S.C.A. § 5108, 7104; 38 C.F.R. § 3.156. 2. Hepatitis was incurred in active service. 38 U.S.C.A. § 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1998). In order to reopen a previously denied claim, new and material evidence must be submitted by the claimant. 38 U.S.C.A. § 5108. New and material evidence is defined by regulation as evidence which has not been previously submitted to agency decisionmakers which bears directly and substantially upon the matter under consideration. It must be neither cumulative nor redundant and by itself or in conjunction with evidence previously assembled be so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. New and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet.App. 273 (1996). 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. See Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). Hodge v. West, 155 F.3d 1356, (Fed. Cir. 1998) provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. Moreover, Hodge stressed that under the regulation new evidence that was not likely to convince the Board to alter its previous decision could be material if that evidence provided "a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Id. Pursuant to Elkins v. West, 12 Vet.App. 209 (1999), the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a)(1998) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S. C. § 5107(a). Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. A reopened claim is not necessarily a well-grounded claim and, absent a well-grounded claim, the adjudication process must come to a screeching halt despite reopening because a claim that is not well grounded cannot be allowed and "VA assistance in claim development is conditional upon the submission of a 'well grounded' claim." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West 118 S.Ct. 2348 (1998). If the claim is not well grounded, it necessarily follows that the section 5107(b) duty to assist never arises and the merits are not reachable. Winters v. West, 12 Vet.App. 203 (1999). As to the issue currently before the Board, the threshold question which must be resolved is whether the veteran's claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim, meaning a claim which appears to be meritorious. See Murphy, 1 Vet. App. 81. A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of an nexus between the inservice injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). The second and third elements of this equation may also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See 38 C.F.R. § 3.303(b) (1998); Savage v. Gober, 10 Vet. App. 488 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumptive period and (ii) present manifestations of the same chronic disease. Ibid. For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. See Robinette v. Brown, 8 Vet. App. 69 (1995). In the present case, service connection for a bilateral ankle disability was denied by the RO in February 1972. Considered at that time were service medical records which disclosed treatment for bilateral ankle symptoms attributed to laxity of the ankle ligaments, and the report of a VA examination in January 1972 which demonstrated no evidence of an ankle disability. The evidence received since the February 1972 rating action includes copies of records of treatment received by the veteran for several conditions at a VA medical facility. These records include references to complaints and treatment for a bilateral foot condition; in January 1999, the veteran underwent excision of a left plantar mass. As these records make no specific reference to a bilateral ankle condition which had its onset in service, they are not probative and of no significance with regard to the veteran's claim. The contentions and testimony provided by the veteran in this regard are cumulative of those considered in the February 1972 rating decision. Accordingly, the Board finds that new and material evidence has not been presented to reopen the claim for service connection for a bilateral ankle disability. 38 U.S.C.A. § 5108, 7104; 38 C.F.R. § 3.156. With respect to the claim for service connection for hepatitis, service connection was denied in February 1972 on the basis that the January 1971 examination had shown no residuals of the infection for which the veteran had been treated in service. Hepatitis C was identified by tests performed at a VA medical facility in March 1997. The report of a VA examination in May 1999 also gives a diagnosis of hepatitis C; the examiner added that based on the information and history available it was not possible to determine if the current hepatitis C was what was described during military service. In the opinion of the Board, this evidence is new and material and establishes not only a well-grounded claim but also a basis for granting service connection. The opinion provided by the VA physician in May 1999 reasonably may be interpreted as meaning that it is as least as likely as not that the current hepatitis C is a residual of the inservice hepatitis condition. That being so, the benefit of the doubt should be resolved in the veteran's favor and service connection granted for chronic hepatitis. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104; 38 C.F.R. § 3.303, 3.156; Caluza. ORDER Entitlement to service connection for hepatitis is granted. New and material evidence not having been submitted to reopen the claim, service connection for a bilateral ankle disability is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals