BVA9504404 DOCKET NO. 93-04 493 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the residuals of a broken left leg, including traumatic arthritis. 2. Entitlement to service connection for traumatic arthritis of the back. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active service from October 1942 to September 1945. He was a prisoner-of-war of the German government from May 1944 to April 1945. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision of January 1991 from the St. Petersburg, Florida, Regional Office (RO). A hearing was held on February 28, 1993, in St. Petersburg, Florida, before Jack W. Blasingame, who is a member of the Board section rendering the determination in this claim and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). A transcript of the hearing was received, and the case was subsequently referred for appellate consideration. Upon review, the Board determined that additional development of the claim was necessary before the issuance of a final decision. Thus, in October 1993, we remanded the claim for the purposes of obtaining additional medical documents and opinions. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred when it failed to grant service connection for the residuals of a left leg and back injury. He maintains that he was injured when he parachuted from a plane over enemy territory in World War II. He further avers that they did not record his condition in his medical records because he was a German prisoner-of-war, but that other prisoners were aware of his disabilities. Therefore, he requests that the Board grant him VA compensation benefits for these two conditions that have continued to cause him pain and suffering since World War II. 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 the evidence and material of record in the veteran's claims file. On the basis of its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that evidence sufficient to reopen a claim for service connection for both conditions has been presented. However, it is also the opinion of the Board that the preponderance of the evidence is against the grant of service connection for the residuals of injuries to the left leg and back, including traumatic arthritis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The RO denied entitlement to service connection for the left leg and back disabilities in May 1977; the claimant did not file a timely appeal following prompt notification of the RO's action. 3. For the next three years, the veteran pursued his claim for service connection for a left leg condition. Then in April 1981, the Board denied entitlement for a left knee and ankle disorder; the claimant did not file a request for reconsideration by the Board upon receiving notification of the Board's action. 4. Additional lay evidence submitted since the 1977 RO decision concerning the veteran's back disability includes testimony by the veteran and medical evidence showing findings of a back disorder condition. This evidence is relevant and probative, and is sufficient to reopen the claim for entitlement for service connection a back disability. 5. Additional lay evidence submitted since the 1981 Board decision concerning the veteran's left leg condition includes testimony by the veteran, "buddy" lay statements, and medical evidence showing findings of a left leg condition. This evidence is relevant and probative, and is sufficient to reopen the claim for entitlement for service connection for a left leg condition. 6. Injury to, and traumatic arthritis of, the left leg, including the knee, was not shown during service. 7. Injury to, and traumatic arthritis of, the back, was not shown during service. 8. Recent medical opinions are unable unequivocally to relate the veteran's current physical ailments of the back and left leg with his military service. CONCLUSIONS OF LAW 1. Evidence received since the originating agency denied entitlement to service connection for a back condition in 1977 is new and material, and the veteran's claim for that benefit has been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). 2. Evidence received since the Board denied entitlement to service connection for a left leg condition in 1981 is new and material, and the veteran's claim for that benefit has been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). 3. An injury to the back was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1994). 4. An injury to the left leg was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy V. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. During World War II, this U.S. Army Air Corps veteran was stationed in Europe and flew missions from Italy into Axis territory. In May 1944, while flying over the Austrian Alps, the veteran, along with other members of the crew, was forced to parachute from the plane. According to the veteran, when he landed, he did so in a tree, from which he was forced to jump out of. When he did jump, he reportedly injured his left leg and back. Then for the next thirteen months, the veteran was a prisoner-of-war of the German government during which time he received no medical attention for his reported injuries. The veteran was then repatriated in 1945, and subsequently discharged. Upon discharge, the veteran did not complain of pain or discomfort involving either his left leg or back. In 1967 the veteran initially raised the claim that he injured his left leg prior to his interment. Then in 1977, he formally applied for VA benefits for his back, and requested that his claim for his left leg condition be reopened. However, upon reviewing the evidence of record, RO denied both claims. VA Form 21-6796, Rating Decision, May 17, 1977. The veteran was notified of this decision, but did not appeal. Thus, the decision became final. During the next three years, the veteran submitted additional information concerning his left leg condition. Each time, the RO denied his request, and he finally appealed the RO's decision to the Board in 1980. On April 7, 1981, the Board denied his request for service connection for a left leg condition. Following the Board's decision, the veteran was notified, but he did not request reconsideration by the Board of the issue of entitlement to service connection for a left leg condition. Though the 1977 RO's decision [for the back] and the 1981 Board decision [for the left leg] are final, the claims for both disabilities shall be reopened, and the former disposition reviewed if new and material evidence is secured or presented. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991). When a veteran seeks to reopen a previously denied claim based upon new evidence, a two-step analysis is required. The first step is to determine if the evidence is new and material; if so, the case is reopened and the merits of the claim must be evaluated on the basis of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (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, which, by itself or in connection with evidence previously assembled, is so significant that it must be considered to decide the merits of the claim fairly. 38 C.F.R. § 3.156(a) (1994). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. The veteran petitioned to reopen his claim in January 1991. In support of his claim, he submitted "buddy" and personal statements. Upon accepting the veteran's petition, the RO found that while the veteran had submitted new and material evidence, said evidence, along with the evidence of record, did not indicate that a grant of service connection was warranted. VA Form 21-6796, Rating Decision, January 23, 1991. The veteran then appealed that decision. Since the veteran's initial disagreement with the RO's decision, the veteran has provided testimony three times before hearing officers at the RO, and once before a travel board member. Additionally, he has proffered additional medical evidence to bolster his claim. Despite these submissions, the RO continued to deny the veteran's request, and he has appealed those decisions to the Board. It is our opinion, that all of the documents, testimony, medical evidence, and statements presented by the veteran are new and material. The Board finds that a reasonable possibility may exist that these pieces of evidence, in the context of all of the evidence, might change the prior outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Rabideau v. Derwinski, 2 Vet.App. 141, 143-144 (1992); 38 C.F.R. § 3.156(a) (1994). Therefore, the veteran's claim is reopened for de novo review. Because we are considering the claim on a de novo basis, and the RO considered it as a request to reopen a finally denied claim, we must address the matter of whether our consideration of the case will prejudice the appellant on the merits. Bernard v. Brown, 4 Vet.App. 384 (1993). The appellant was given notice of the need to submit evidence showing that his left leg and back disorders were incurred in service. The RO afforded him three different personal hearings, and he also provided testimony before a board member who was temporarily assigned to the RO. Additionally, supplemental statements of the case, and supplemental statements thereafter, included discussions of the merits of the case, summarized all evidence of record and included the law and regulations about the issue of service connection and finality of decisions. Therefore, we do not believe our deciding the case on the merits will prejudice the appellant. We must stress that the Board has no doubt that the veteran suffered extreme hardship and deprivation because of his prisoner-of-war experience. In view of the great sacrifice that the veteran made for his country, the Board has carefully reviewed the entire record for evidence favorable to his contentions. However, despite the extent of hardships endured by the veteran while he was a prisoner-of-war, in order for a grant of service connection for the conditions claimed, a disability must exist, and it must be manifested to a compensable degree. The service medical records are negative for any type of injury to the left leg or back. Service medical records refer to a right leg injury associated with a German prisoner camp in May 1944; they also note cramps in the right calf on exertion, with no recurrent abnormality. We further note that when the veteran initially applied for compensation benefits in 1945, he claimed that he injured his right leg as a result of his treatment at a prisoner-of-war. Moreover, when the then Veterans Administration examined the veteran in 1946, he stated that he had injured his right knee in May 1944 when he parachuted from his plane. The record then was lacking any reference to any injury of the left knee or leg or of the back. X-ray films and the veteran's POW protocol medical examination fail to portray any abnormalities, residuals, calcification, or any other indicators of injuries received to the left leg. X- ray films, dated February 3, 1984, of the back reveal ". . . minimal osteoarthritis is noted involving the back." Generalized, degenerative, versus traumatic, arthritis was diagnosed. Moreover, the osteoarthritis that was present in the back was not manifested to a degree of 10 percent. The buddy statements submitted by the veteran imply that the veteran did suffer some type of injury to the left leg. Fellow prisoners-of-war stated that the veteran walked with a limp from an injury to the left knee and used a wooden crutch while in prison camp. The Board believes that the recollections of these prisoners-of-war concerning the veteran's health during service were given in good faith. However, in evaluating the veteran's claim, we have given considerable weight to the actual service records and the clinical data, of which there are contemporaneous documentary records. The Board believes that this clinical information is far more probative than a statement based on remote memories by individuals who also suffered while incarcerated. Also, included in the claims folder were three opinions concerning the veteran's disabilities. These statements were provided by Doctors J. P. Barnett, Jr., Luis Rodriguez, and G. Tchakmakoff - November 22, 1991, January 21, 1994, and September 14, 1994, respectively. All were based upon the history provided by the veteran, and not based on personal observations during the critical time in question. There are no records of testing accomplished by the doctors that would substantiate their conclusions. Again, in evaluating the veteran's claim we have placed considerable weight on the actual service records, the contemporaneous medical documentary records, and the medical data supplied by the veteran immediately following his repatriation. The Board believes that this clinical information is far more probative than the unsubstantiated diagnoses of the physicians who saw the veteran forty-seven plus years after the supposed injury. In other words, the doctors based their conclusions solely on the history given by the veteran, rather than upon an objective review of the record. These diagnoses, therefore, can be no better than the facts alleged by the claimant, and may be accorded little weight with regard to the causation of the veteran's current disability. Swann v. Brown, 5 Vet.App. 229, 233 (1993). Per 38 U.S.C.A. § 1154(b) (West 1991), and 38 C.F.R. § 3.304 (1994), where a veteran engaged in combat with the enemy during a period of war and now suffers from a disease or disability, service connection may be granted via testimony or lay evidence provided by the veteran. However, the information provided must be consistent with the circumstances, conditions, or hardships of said service. Moreover, it is not necessary that an official record of said disability or disease exist, and reasonable doubt will be found in favor of the veteran. The provisions of 38 C.F.R. § 3.304(d) (1994) are a restatement of the statute. Because of the veteran's World War II combat service, the provisions of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. 3.304(d) (1994) are for consideration. The statute and regulation require "satisfactory lay or other evidence" of incurrence or aggravation. Besides those statements given by former prisoners-of-war, the only evidence of incurrence of the claimed disabilities is the veteran's statements articulated long after the events took place. In May 1991, January 1992, January 1993, and again in February 1993, the veteran provided sworn testimony at the RO which was cumulative of prior evidence. At these hearings, the veteran filed to provide evidence that would negate the service records that fail to note injury to the left leg and the back. Moreover, his testimony was negative for post-service continuity of complaints, findings, or diagnoses of back and leg disabilities to reasonably relate current complaints to a period of service ending many years earlier. Such chronicity should be found if the individual was suffering from the residuals of injuries to the leg and back. That is, this evidence is not satisfactory because it is inconsistent with the actual clinical record and the veteran's statement at separation that he did not have any residuals of injuries to his left leg and back. Even if we were to deem the veteran's assertions as satisfactory evidence, the actual record clearly and convincingly rebuts that evidence. Neither 38 U.S.C.A. § 1154 (West 1991) nor 38 C.F.R. § 3.304(d) (1994) creates a presumption in favor of a combat veteran. Smith v. Derwinski, 2 Vet.App. 137, 140 (1992). The question of entitlement to service connection remains a factual determination that is based upon the evidence in each individual case. Id. Section 1154 renders impermissible the denial of a claim solely because of the lack of an official record of incurrence or aggravation. Sheets v. Derwinski, 2 Vet.App. 512, 515 (1992). We do not decide against the veteran because his service medical records do not document an episode or episodes of injuries to the leg and back. He may have experienced some type of injury to both areas when he parachuted from his plane. The fundamental reason for our denial is the absence of a showing of persistent residuals of trauma to these areas, i.e., chronic pain, discoloration, traumatic arthritis, etcetera, until many years after service. Part of that determination rests, and we believe properly so, on the negative findings, objective and subjective, when he was examined on leaving service. In determining whether service connection is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). It is the Board's view that no evidence has been presented which demonstrates that the veteran suffered injuries to the left leg and back in service, or that continuous symptomatology consistent with said disabilities have been present since service. In essence, while the veteran may have suffered some sort of injury during service, evidence that links this trauma to the presence of leg and back conditions approximately fifty years later has not been submitted. Based on these findings, and following a full review of the record, the Board finds that the appellant does not suffer from the residuals of injuries to the back and leg that may be associated with his military service. ORDER Entitlement to service connection for alleged injuries to the left leg and back, including traumatic arthritis, is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.