BVA9500025 DOCKET NO. 93-01 810 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for paralysis of the veteran's left side. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from September 1954 until January 1956. This matter comes before the Board of Veterans’ Appeals (Board) from a March 1992 rating decision of the Department of Veterans Affairs (VA), Chicago, Illinois, Regional Office (RO). The RO, in a rating decision dated in April 1956, denied service connection for hemiplegia of the veteran’s left side. He was notified of the decision by VA letter, also dated in April 1956. The veteran did not file a timely appeal. CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that he should never have been inducted into active duty service because of the residuals from a head injury he had sustained 18 months prior to service, and that once on active duty, military service aggravated his preservice residuals in that he was unable to continue, and did not receive, any further therapy pertaining to those residuals. He maintains that the evidence submitted is new and material which warrants reopening his claim. 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 file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted, that the claim of service connection for hemiplegia of the veteran’s left side is not reopened, and the RO’s decision of April 1956 remains final. FINDINGS OF FACT 1. In an unappealed rating decision dated in April 1956, the RO denied service connection for hemiplegia of the veteran’s left side. 2. Additional evidence received since the RO’s April 1956 decision is cumulative, duplicative, or does not tend to show that the veteran’s pre-existing hemiplegia of the left side was aggravated by active duty service. 3. The evidence submitted since the April 1956 rating decision does not raise a reasonable possibility of changing that prior decision. CONCLUSIONS OF LAW 1. The RO’s April 1956 rating decision denying service connection for left hemiplegia is final. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulation 1008 and 1009 (effective January 25, 1936, to December 31, 1957). 2. The evidence submitted to reopen the claim for entitlement to service connection for left hemiplegia is not new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran has presented a well grounded claim; that is, one which is plausible. The Board also finds that the VA has adequately fulfilled its responsibility to assist him in the development of his claim. 38 U.S.C.A. § 5107(a). Factual Background A review of the records available to the RO in April 1956, discloses that at the veteran’s induction physical examination in September 1954 he was neurologically normal. Physical examination for other purposes two weeks after entering basic training noted that the veteran had almost completely recovered from a left hemiplegia suffered in 1953. In January 1955, an orthopedic examination disclosed a uniform mild to moderate left arm, forearm, thigh and leg muscular atrophy. There was no evidence of any sensory deficit. The diagnosis was mild to moderate left hemiparesis. In May 1955, the veteran’s history was reviewed and a physical examination was conducted. This revealed left upper extremity muscle atrophy, moderate left upper extremity weakness, a hyperreflexic left side vs. right side, minimal facial asymmetry, burr holes and a slight gait disturbance. The clinical impression that these findings were due to the 1953 preservice accident. In August 1955, the veteran was seen for a neurosurgical examination. That study disclosed that the veteran was "no worse off than 1 year (previously)." No neurosurgical therapy was indicated. The examiner believed that the veteran was able to complete his obligated term of service. The veteran’s service records show that Military Board procedures were instituted in October 1955, and the recommendation was made that he be discharged because of unsuitability. In January 1956, the veteran was separated from active duty. The evidence received since the RO’s April 1956 decision includes the March through April 1953 hospital records concerning the initial treatment for the veteran’s cerebral hemorrhage. They reveal that the veteran suffered the hemorrhage following a traffic accident. Also received since April 1956, is an August 1953 letter from M.H. Partridge, M.D. At that time, Dr. Partridge advised the veteran’s local draft board that in March 1953 the veteran had suffered a cerebral hemorrhage with resultant left leg and arm paralysis. While the veteran had all movements of his left leg and arm, it was Dr. Partridge’s opinion that there was still a moderate degree of muscular weakness, as well as a skull defect at the site of an unfilled cerebral decompression. In November 1991, the veteran submitted an October 1991 letter from Dr. Partridge which stated that he had wrote the veteran’s draft board in 1954 to advise that the veteran was a poor candidate for military service due to a then recent brain and skull injury which necessitated surgical decompression. Finally, since the April 1956 rating decision VA has received two letters from Richard M. Baley, M.D. Dr. Baley offers the opinion that it seems reasonable that the veteran may have benefited from more intensive physical therapy and other rehabilitative services rather than being drafted. He further opines that the best chance for complete neurologic recovery would have been to pursue active, intensive physical therapy to the point when no improvement was expected to result. Analysis Service connection may be granted for a disorder incurred or aggravated by active duty. 38 U.S.C.A. § 1110, 1131 (West 1991). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service will rebut this presumption. 38 U.S.C.A. § 1111, 1137 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1994). The United States Court of Veterans Appeals has held that intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation. Rather, the underlying condition must have worsened. Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). In this case, the RO in an April 1956 rating decision denied service connection for hemiplegia of the veteran’s left side. The basis for the decision was that the disorder was present prior to his entry onto active duty service and was not aggravated therein. The veteran was notified of the decision by VA letter dated in April 1956. Inasmuch as the veteran failed to appeal the decision within one year, the rating decision is final. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulation 1008; (effective January 25, 1936, to December 31, 1957). In order to reopen a previously denied unappealed claim, the veteran must present new and material evidence. 38 U.S.C.A. § 5108. In considering whether a claim may be reopened, a two- step analysis must be performed. First, the Board must determine whether the evidence submitted in support of reopening the claim is new and material. Second, if, and only if, the Board determines that the veteran has produced new and material evidence, is the claim deemed to have been reopened and the case must then be evaluated on the basis of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140 (1991). In Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the statutory terms "new" and "material" were defined. Evidence is "new" if it is "not merely cumulative of other evidence on the record." For evidence to be "material," it must be "relevant and probative of the issue at hand." Furthermore, not every piece of new evidence, even if relevant and probative, will justify a reopening of the claim where some evidence is of limited weight and thus is insufficient to justify a new hearing. There must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. While the veteran was found to be neurologically normal at his September 1954 induction examination, the evidence available to the RO in April 1956 and now clearly and unmistakably shows that he entered active duty with residuals from a March 1953 cerebral hemorrhage. Hence, the presumption of soundness is rebutted and service connection in April 1956 and today could only be granted if the record shows that this preexisting disorder worsened during the veteran’s active duty. In examining the record to determine whether or not the evidence submitted since April 1956, when viewed in light of all of the evidence of record, raises a reasonable possibility that the preexisting disorder was aggravated, the Board finds that it remains the case that there is absolutely no evidence, save the veteran’s own opinion, that residuals of a cerebral hemorrhage worsened during his term of active duty service. Indeed, the only competent opinion comparing the state of the veteran’s preservice symptomatology to that presented during service remains the August 1955 neurosurgical opinion which opined that the veteran showed no change. Hence, while the veteran has presented new evidence, in the sense that it is not cumulative of that presented to the rating board in April 1956, see, e.g., the 1953 hospital records concerning the initial care provided following the hemorrhage; the evidence presented since April 1956 is not material because it is neither relevant nor probative to the question whether or not the veteran’s preexisting disorder was aggravated during his active duty service. Accordingly, the Board finds that the veteran’s claim should not be reopened. In reaching this decision the Board considered the opinion presented by the veteran that the disorder worsened during his active duty. While he is competent to offer an opinion as to such symptoms as increased pain, etc., the veteran, as a lay person untrained in the field of medicine, is incompetent to state that his preexisting disorder permanently worsened during his active duty service. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). Hence, the veteran’s testimony and statements do not represent new and material evidence. The Board further considered the opinions of Drs. Partridge and Baley. These opinions, however, are not material because they only speak to the propriety and/or the appropriateness of the veteran being inducted into the armed forces. Whether or not the veteran should have been drafted into the service in 1954 is a question which beyond the Board’s jurisdiction, and a question which is not pertinent to query whether or not his preexisting cerebral hemorrhage residuals worsened during the period that he did serve. Hence, their statements are not material. ORDER New and material evidence not having been submitted to reopen the claim for entitlement to service connection for hemiplegia of the veteran’s left side, the claim remains denied. DEREK R. BROWN 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.