Citation Nr: 0005209 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-20 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for a bilateral leg disorder. 2. Whether new and material evidence has been submitted to reopen the claim of service connection for a low back disorder. 3. Whether new and material evidence has been submitted to reopen the claim of service connection for a left shoulder disorder. 4. Whether new and material evidence has been submitted to reopen the claim of service connection for pes planus, bilateral. ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from October 1979 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) from an August 1998 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. In a November 1983 rating decision, the RO denied entitlement to service connection for a bilateral leg disorder, low back disorder, left shoulder disorder, and pes planus, bilateral. 2. The evidence received since the RO's November 1983 decision denying entitlement to service connection for pes planus is either duplicative, or cumulative of evidence previously of record. 3. The evidence received since the RO's November 1983 decision is so significant, with regard to the issues of entitlement to service connection for bilateral leg, low back, and left shoulder disabilities, that it must be considered in order to fairly decide the merits of the case. 4. There is no competent evidence of a nexus between any current bilateral leg, low back, or left shoulder disability and a disease or injury in service. CONCLUSIONS OF LAW 1. The RO's November 1983 decision denying service connection for bilateral leg disorder, low back disorder, left shoulder disorder, and pes planus is final. 38 U.S.C.A. § 7105 (West 1991); 20 C.F.R. §§ 20.302, 20.1103 (1999). 2. Evidence received since the RO denied entitlement to service connection for pes planus is not new and material and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. Evidence received since the RO denied entitlement to service connection for bilateral leg, low back, and left shoulder disorders, is new and material and the claims are reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 4. The claims for service connection for bilateral leg, low back, and left shoulder disability are not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Evidence of record at the time of the RO's November 1983 decision was as follows: The veteran's service medical records show that on the examination for entrance into service, in June 1979, he was noted to have pes planus, second degree, asymptomatic, not considered disabling. The records show that the veteran was seen with complaints of aching feet in March 1981. There was no discoloration or swelling noted. There was a decreased arch noted, bilaterally. Also in March 1981, the veteran complained of pain radiating down his legs. There was no diagnosis provided. The veteran was issued arch supports. The veteran was seen on several occasions with complaints of low back pain. Good range of motion was noted. The diagnosis was chronic low back pain and lumbosacral strain. The veteran reported a history of left shoulder subluxation times one. On examination, there was full range of motion. Strength was within normal limits. There was no apprehension, no palpation for tenderness and no apparent ligament laxity. In its November 1983 decision the RO determined that service connection for a foot condition was not warranted because bilateral pes planus had pre-existed service and not been aggravated therein. It denied entitlement to service connection for back pain, on the grounds that back pain was not a ratable entity, and it denied service connection for a disability of the back, legs, and left shoulder on the grounds that the evidence did not show evidence of these disabilities. Evidence submitted since the November 1983 decision is as follows: VA outpatient treatment records dated from March to April 1997 show that in April 1997 the veteran was seen with a complaint of pain in both ankles, knees, left shoulder, and left side of back since service. No pertinent diagnosis was reported. VA outpatient treatment records dated from May 1997 to February 1998 primarily show treatment for disabilities currently not at issue. However, in August 1997, the veteran was seen with complaints of pain in his shoulder, back, and bottom of his feet. In December 1997, the veteran was seen with complaints of pain in his forefeet for sixteen years, with prolonged standing and walking. The assessments were Achilles tendonitis, hammertoes, and hallux valgus. X-rays showed hallux valgus. In January 1998, the veteran reported a three to four year history of diffuse pains in the back, shoulder, ankles, feet, and patellae. The impression was disseminated "c. immitis." Copies of the veteran's previously considered service medical records were also received. Pertinent Law and Regulations Following notification of an initial review and determination by the RO, a notice of disagreement must be filed within one year from the date of mailing of notification, followed by a timely substantive appeal; otherwise, the determination becomes final and is not subject to revision absent new and material evidence. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1999). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991); Stanton v. Brown, 5 Vet. App. 563, 566 (1993). "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, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). Evidence is new when not merely cumulative of other evidence in the record, and material when relevant and probative of the issue at hand. A three-step analysis is conducted under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material. For purposes of determining whether new and material evidence has been submitted, "the credibility of the [new] evidence" is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new and material, the Board must reopen the claim and review all the evidence of record to determine the outcome of the claim on the merits. The first step involves two questions: (1) Is the newly presented evidence "new" (not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record)? (2) Is it "probative" of the issues at hand? Evans v. Brown, 9 Vet. App. 273 (1996). A third requirement for reopening imposed by the Court, that the evidence create a reasonable possibility of changing the outcome, has been invalidated by the United States Court of Appeals for the Federal Circuit. Hodge v. West, 155 F.3d 1356 (Fed Cir 1998). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has specifically held that the Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and that before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Fulkerson v. West, 94- 304 (U.S. Vet. App. March 24, 1999). "Moreover, once the Board finds that no such evidence has been offered, that is where the analysis must end." Butler v. Brown, 9 Vet. App. 167, 171 (1996). In Elkins v. West, 12 Vet. App. 209 (1999) (en banc) the Court held that the decision of the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), required the replacement of the two-step Manio test with a three-step test. Under the three step test announced in Elkins, VA must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) so as 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 VA must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, 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, VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C. § 5107(a) has been fulfilled. In general, under pertinent law and VA regulations, service connection requires evidence that a disease or disorder was incurred in or aggravated by service or that the disease or disorder is otherwise attributable to service. See 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Veterans are presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C.A. § 1111 (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 such 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; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Error In his substantive appeal the veteran alleged that there was unspecified error in the original rating decision which denied entitlement to service connection for the claimed disabilities. A decision that involves clear and unmistakable error does not become final, and the record is treated as if the corrected decision had been made at the time of the erroneous decision. 38 C.F.R. § 3.105(a) (1999) The Court has established a three-pronged test, each of which must be met before clear and unmistakable error is established: (1) ...the correct facts, as they were known at the time, were not before the adjudicator (i.e. more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be "undebatable" and of the sort "which had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE [clear and unmistakable error] must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992). In Caffrey v. Brown, 6 Vet. App. 377 (1994), the majority of the court held that failure on the part of VA to comply with its duty to assist veterans with the development of their claims could never constitute clear and unmistakable error. The Court reached this conclusion on the basis that such a failure creates only an incomplete record, not one which is inaccurate. Caffrey, 6 Vet. App. at 383. More recently, the United States Court of Appeals for the Federal Circuit has held that in order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). As an initial step a claimant asserting clear and unmistakable error must specify the error. It is not enough to merely assert that there was clear and unmistakable error, to make broad-brush allegations of such error, or to assert that the evidence was improperly weighed and evaluated. Rather, the claim must be raised with some degree of specificity. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In this case the veteran has merely made a general assertion that there was error, without specifying the error. In the absence of any specificity, he has not reasonably raised a valid claim of CUE and there is no obligation on the part of the Board to adjudicate such a claim. Id at 45. Bilateral Leg Disorder, Low Back Disorder, and Left Shoulder Disorder New and Material Evidence The evidence obtained since the last final disallowance includes copies of service medical records. This evidence is duplicative of evidence previously of record. VA outpatient treatment reports show treatment, for conditions not currently at issue. This evidence is not probative. These records do not relate to any basis for the prior denial of benefits. As such these records are not so significant that they must be considered in order to fairly adjudicate the veteran's claim. However, the evidence submitted since the November 1983 disallowance includes additional post-service medical evidence. These records constitute the initial post service evidence of the claimed disabilities, and they also document the veteran's reports of a continuity of symptomatology. Board concludes that this evidence is so significant that it must be considered in order to fairly adjudicate the claims. Therefore, new and material evidence has been submitted to reopen the claims for service connection for bilateral leg, low back, and left shoulder disorders. Well-Grounded Claims The threshold question to be answered is whether the appellant has presented evidence of a well grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail and the Board has no duty to further assist him with the development of his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); 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 (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (1997) cert. denied 118 S.Ct. 2348 (1998). Under the provisions of 38 C.F.R. § 3.303(b), chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. The second and third Caluza elements can 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 presumption 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. Clyburn v. West, 12 Vet. App. 296 (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Alternatively, service connection may be established under § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Brewer v. West, 11 Vet. App. 228, 231 (1998). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Sacks v. West, 11 Vet. App. 314, 315 (1998); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes for determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. King v. Derwinski, 5 Vet. App. 19, 21 (1993). While the veteran has reported a continuity of symptomatology with regard to the claimed disabilities, and the diagnosis of "c. immitis" arguably provides a current diagnosis. However, competent evidence of a nexus between the veteran's reported continuity of symptomatology and any current diagnosis. Consequently, because the veteran is not shown to have any medical expertise, and because competent medical evidence relating his current conditions to either an in-service injury or to continuous symptomatology is required, his claims are not well grounded under 38 C.F.R. § 3.303(b). See Hodges v. West, No. 98-1275 (U.S. Vet. App. January 12, 2000); Voerth v. West, 13 Vet. App. 117, 120 (1999). Pes Planus, Bilateral The evidence submitted since the November 1983 rating decision, except for the previously considered service medical records, makes no mention of pes planus. Thus the evidence is duplicative, in the case of the service medical records, or is not relevant, in the case of all of the other evidence received since the 1983 rating decision. The Board must, accordingly, conclude that the evidence received since the November 1983 rating decision is not new and material, and the claim is not reopened. ORDER New and material evidence having been submitted, the claims for service connection for bilateral leg, low back and left shoulder disorders are reopened. Service connection for bilateral leg, low back and left shoulder disorders is denied. New and material evidence having not been submitted, the claim for service connection for pes planus, bilateral is not reopened. Mark D. Hindin Member, Board of Veterans' Appeals