Citation Nr: 0005376 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-04 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for hepatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from May 1966 to May 1968. This matter came before the Board of Veterans' Appeals (BVA or Board) on appeal from a decision of October 1997 by the Department of Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO). FINDINGS OF FACT 1. An unappealed rating decision in July 1970 denied the veteran's claim for service connection for hepatitis. 2. The additional evidence presented since July 1970 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for hepatitis. CONCLUSIONS OF LAW 1. The rating decision of July 1970 which denied service connection for hepatitis is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The additional evidence presented since July 1970 is not new and material, and the claim for service connection for hepatitis has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 1991). If a chronic disorder such as cirrhosis of the liver is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). There must be competent evidence of current disability, of incurrence or aggravation of a disease or injury in service, and a nexus between the in-service injury or disease and the current disability. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The nexus to service may also be satisfied by the presumption noted above. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). The RO denied the veteran's claim for service connection for hepatitis in July 1970, and the veteran did not perfect an appeal. The evidence that was considered at that time included the veteran's service medical records which showed that he was hospitalized on March 24, 1968, with complaints of diarrhea and vomiting associated with a headache. Physical examination and laboratory results were completely normal. He was treated with antibiotics and antidiarrheal medication. He was discharged and returned to duty in April 1968. The assessment was diarrhea, and shigella not proven. The service medical records also included the report of a medical history given by the veteran in May 1968 for the purpose of his separation from service. He indicated by checking a box that he had a history of stomach, liver or intestinal trouble. He denied having a history of jaundice. The report of a medical examination conducted at that time shows that clinical evaluation was normal. In the decision of July 1970, the RO found that the hepatitis claimed by the veteran was not been shown by the evidence of record. The RO specifically noted that the report of hospitalization in service did not show infectious hepatitis. The veteran was notified of that decision and of his right to file an appeal, but he did not do so and the decision became final. In order to reopen a claim that was denied previously, a claimant must present new and material evidence. See 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" means evidence not previously submitted to the agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156 (1999). When determining whether new and material evidence has been presented to reopen a claim, the VA considers the evidence presented since the most recent decision in which the claim was denied on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). In the present case, the most recent decision which denied the veteran's claim on any basis was the July 1970 decision. The reopening standard 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. See Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998); Fossie v. West, 12 Vet. App. 1 (1998). If no new and material evidence is presented to reopen the claim, the prior denial remains final. See 38 U.S.C.A. § 7105 (West 1991). The additional evidence that has been presented includes a copy of the veteran's immunization record from during service. However, that record does not contain any mention of hepatitis. The additional evidence which has been presented also includes a copy of a bill from the Cleveland Clinic Foundation dated in June 1996 which shows that the veteran was billed for several lab tests including hepatitis tests. However, the bill does not contain any indication that the tests for hepatitis were positive, and there is also no mention of the veteran's period of service. The only medical evidence that has been presented which contains medical opinion regarding whether or not the veteran has hepatitis is the report of a general medical examination conducted by the VA in April 1999. The report shows that the veteran claimed that in 1968 while he was in Vietnam, he developed flu like symptoms and yellow jaundice, and was treated for hepatitis in a service hospital. He said that since then he had recurrent flu like symptoms and jaundice. He also said that two years earlier he was seen by a Cleveland Clinic doctor and told that he had Hepatitis B. A month earlier he reportedly had chills, fevers and yellow jaundice. He now complained of easy fatigability. The initial diagnosis was history of hepatitis, normal general medical examination. Following the completion of lab testing, the diagnoses were amended to include normal hepatitis test (antigen) (negative); and normal liver function test. The fact that the veteran's own account of the existence and etiology of a disease was recorded in his medical records is not sufficient to support the claim. In LeShore v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. The additional evidence that has been presented also includes testimony given by the veteran during a hearing held in September 1998. The testimony was to the effect that the veteran initially developed and was treated for hepatitis in service, and that he continued to have the disorder. Significantly, however, the veteran may testify as to symptoms, but he is not qualified to offer opinions as to matters which require medical expertise, such as whether any particular symptoms were manifestations of hepatitis or the date of onset of the disease. The Court has held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). See also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), in which the Court held that a veteran does not meet his burden of presenting evidence of a well-grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer medical opinions. Moreover, statements by the veteran in which he reports what his physicians have told him are not sufficient to render the claim well grounded. The Court has held that hearsay medical evidence, as transmitted by a lay person, is not sufficient to render a claim well-grounded because the connection between what a physician said and the lay person's account of what the physician purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also Kirwin v. Brown, 8 Vet. App. 148, 153 (1995). In summary, the Board finds that the additional evidence presented since July 1970 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for hepatitis. What is still lacking is competent medical evidence that the veteran has hepatitis, and competent medical evidence linking that hepatitis to his period of service. In the absence of such evidence, the claim cannot be reopened. Accordingly, the decision of July 1970 that denied service connection for hepatitis remains final. ORDER New and material evidence has not been presented to reopen a claim for service connection for hepatitis. The appeal is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals