Citation Nr: 0000757 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 96-27 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for an eye condition. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of a respiratory condition, claimed as cold and/or bronchitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from September 1952 to July 1954. In May 1995, the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denied the veteran's claims for service connection for hypertension, an eye condition, and residuals of a respiratory condition which he claimed as cold and/or bronchitis. He appealed the claim for the respiratory condition to the Board of Veterans' Appeals (Board). He did not perfect a timely appeal concerning the claims for the hypertension and eye condition. In February 1998, the Board remanded the claim for the respiratory condition to the RO for further development and consideration. After completing the development requested, the RO continued to deny this claim. The veteran also filed a petition at the RO in March 1998 requesting that his claims for hypertension and an eye condition be reopened. The RO denied his petition to reopen these claims in December 1998, and he appealed to the Board. Therefore, the issues before the Board are whether he has submitted new and material evidence to reopen the claims for hypertension and an eye condition, and whether he is entitled to service connection for the respiratory condition. FINDINGS OF FACT 1. In May 1995, the RO denied the veteran's claims for service connection for hypertension and an eye condition; in June 1995, the RO notified him of the decision, and of his procedural and appellate rights, and he did not perfect a timely appeal of these claims. 2. The evidence that has been added to the record since the May 1995 RO decision is either duplicative of evidence that was on file when that decision was made or does not tend to show that the veteran has hypertension or an eye condition as a result of his service in the military. 3. In July 1970, the RO denied the veteran's claim for service connection for a respiratory condition; later that month, the RO notified him of the decision, and of his procedural and appellate rights, and he did not timely appeal. 4. Medical and other evidence has been submitted since the July 1970 RO decision that is not duplicative of evidence that was on file when that decision was made and which is probative of the issue of whether the veteran has a respiratory condition as a result of his service in the military. 5. There still is no medical evidence of record linking an upper respiratory infection that was diagnosed during service, or any of its associated symptoms, to diagnoses of asthma, bronchitis, reactive airway disease, and chronic obstructive pulmonary disease that were made many years later, after service. 6. The claim for service connection for a respiratory condition is not plausible. CONCLUSIONS OF LAW 1. The RO's May 1995 decision denying the veteran's claims for service connection for hypertension and an eye condition is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. As new and material evidence concerning the claims for service connection for hypertension and an eye condition has not been submitted, the requirements to reopen these claims have not been met. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran has submitted new and material evidence since the July 1970 RO decision to reopen his claim for service connection for a respiratory condition. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1999). 4. The claim for service connection for a respiratory condition is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Hypertension will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. I. Hypertension and an Eye Condition The RO initially denied these claims on the merits in May 1995 based, in part, on a review of the veteran's service medical records (SMRs), which contained no evidence of hypertension. His SMRs did confirm, however, that he received treatment while on active duty, in June 1953, for complaints that his eyes were occasionally "hurting." He denied experiencing problems with his vision, and there were no signs of inflammation or irritation. After observing some weakness in the intra-ocular muscles, the treating physician prescribed eye drops. The veteran received additional treatment for his eyes in November 1953, and his doctors diagnosed a refractive error due to alternating esotropia. His uncorrected visual acuity was 20/25, bilaterally (i.e., in both eyes). He had the same uncorrected visual acuity during his service separation examination in July 1954, but the examining physician indicated that it was correctable (with glasses) to 20/20, which was completely normal. The veteran's blood pressure also was within normal limits, measuring 110/72 (systolic/diastolic). Other evidence considered by the RO in denying these claims in May 1995 was the report of a quadrennial medical evaluation the veteran underwent in May 1958, about 4 years after his discharge from the military, during which time he complained of "eye trouble," noting that he wore glasses. He denied having any "serious" conditions, and there was no objective clinical indication of a relevant defect-either in the way of his eyes or vision (which was 20/20), or signs of hypertension. The remaining evidence considered by the RO consisted of a November 1978 statement from a doctor at Duke University Medical Center showing, among others, a diagnosis of mild hypertension. The RO also considered medical records pertaining to treatment the veteran later received for hypertension on various occasions during the 1980s and 1990s (prior to 1995), in a VA outpatient clinic and at the Lincoln Community Health Center. He also continued to receive treatment during those years for problems with his vision due to refractive errors caused by presbyopia, hyperopia, and possible glaucoma. As further support for his claims, he submitted several written statements alleging that his hypertension and eye condition were attributable to his service in the military. In denying the claim for hypertension, the RO made note of the fact that there was no objective clinical evidence of the condition at any time while the veteran was on active duty in the military, or within the one-year presumptive period after his service ended, and that there also was not any medical evidence of record linking the diagnoses of hypertension, post service, to his active duty in the military. In denying the claim for an eye condition, the RO noted that, as a matter of law, service connection is expressly precluded for "congenital or developmental defects" such as refractive errors due to alternating esotropia, presbyopia, hyperopia, etc. See 38 C.F.R. § 3.303(c). In June 1995, the RO notified the veteran of its decision, and of his procedural and appellate rights; and, although he submitted a Notice of Disagreement (NOD) concerning these claims in June 1996, and was issued a Statement of the Case (SOC) in July 1996, he did not thereafter "perfect" an appeal on these issues by the timely submission of a Substantive Appeal (e.g., a VA Form 9) or equivalent statement. See 38 C.F.R. §§ 20.200, 20.202, 20.203, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305, 20.306. Thus, the RO's decision became final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103. In March 1998, the veteran petitioned the RO to reopen his claims. The RO denied his petition in December 1998, and this appeal ensued. If evidence that is both "new and material" is presented or secured with respect to claims that, as here, have been denied by the RO and not timely appealed, the Secretary of VA shall reopen the claims and review the former disposition of them. See 38 U.S.C.A. § 5108. The provisions of section 5108 require consideration of all evidence since the last final denial in order to determine whether the claims must be reopened and readjudicated on the merits. See Evans v. Brown, 9 Vet. App 273, 282-83 (1993); Glynn v. Brown, 6 Vet. App. 523, 528-29 (1994). Hence, the dispositive issue in this case is whether new and material evidence has been submitted since the May 1995 RO decision that would permit the reopening of the claims for service connection for hypertension and an eye condition. In considering whether a claim may be reopened, a two-step analysis must be employed. First, the Board must determine whether the evidence submitted to reopen the claim is both new and material. Secondly, if, and only if, the Board determines that the evidence is both new and material, the claim is deemed to have been reopened and it must be evaluated on the basis of all of the evidence of record, both new and old. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The two-step analysis involves two questions: (1) Is the evidence at issue "new," that is, not of record at the time of the last final disallowance, and not merely cumulative or redundant of other evidence of record; and, (2) Is it "material," i.e., is it relevant and probative of the issue at hand, and which, by itself or in connection with the evidence previously assembled, is so significant it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a); Cox v. Brown, 5 Vet. App. 95, 98 (1993). In addition, for the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is no requirement, however, that such evidence, when viewed in the context of all of the evidence, both new and old, create a reasonable possibility that the outcome of the case on the merits would be changed. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Records show the RO included this as a requirement for reopening the claims in its December 1998 decision, which was previously the practice of the VA in accordance with the case law of the United States Court of Appeals for Veterans Claims (Court)-formerly, the United States Court of Veterans Appeals. However, records also show that the RO subsequently considered the correct legal standard for reopening claims in the February 1999 SOC that it provided the veteran. Therefore, he will not be prejudiced by the Board doing the same. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The evidence associated with the claims file since the May 1995 RO decision consists of: a) several written statements from the veteran and his representative; b) transcripts of testimony that he gave during his hearings in September 1997 and August 1999; and c) medical records concerning treatment he received in a VA outpatient clinic on various occasions from 1995 to 1998 for hypertension and a referral appointment that he had in the eye clinic of the VA hospital. The numerous written statements from the veteran and his representative, as well as the oral testimony that he gave during his hearings, do not constitute new evidence because they merely reiterate contentions and arguments that were made prior to the RO denying his claims in May 1995. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). The veteran-and those representing him or acting on his behalf- always have alleged that his hypertension and eye condition are the result of his service in the military, so additional written and oral testimony to this same effect, when previously acknowledged, is not new. Furthermore, as neither he nor his representative possesses the necessary medical expertise or training to competently render an opinion on a medical matter, such as the etiology of a condition, their allegations purporting to do so also are not material. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Where, as here, resolution of the claims turns on a medical matter, unsupported lay statements, even if new, cannot serve as a predicate to reopen a previously denied claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Of the remaining evidence that has been submitted in an effort to reopen these claims-namely, the medical records concerning the treatment the veteran received in the VA outpatient clinic on the various occasions from 1995 to 1998-it also is not new because there was medical evidence of both hypertension and an eye condition (albeit the refractive error that is not subject to service connection), when the RO denied the claims in May 1995. Consequently, merely to submit additional medical records showing further, more recent, treatment for these conditions is not new because the RO already acknowledged when denying the claims in May 1995 that the veteran has hypertension and an eye condition. Moreover, this evidence is not material because none of the records etiologically link the hypertension or any sort of eye condition (other than the refractive error that is not subject to service connection) to the veteran's service in the military. Service connection for a claimed disability requires, not only medical evidence of current disability, but also medical evidence linking the current disability to service. See Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). There is no such evidence in this case. Inasmuch as none of the evidence associated with the claims file since the May 1995 RO decision, when viewed either alone or in light of the evidence previously of record, tends to indicate that the veteran has hypertension or an eye condition (which is subject to service connection) that was either incurred in or aggravated by his service in the military, his appeal concerning these issues must be denied because the evidence is not "new and material" for the purpose of reopening his claims. Hence, the May 1995 RO denial remains final. The Board notes additionally that it is not aware of any circumstances in this case that would put VA on notice of the existence of any additional relevant evidence that, if obtained, would provide a basis to reopen the claims. McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). The Board also finds that, inasmuch as the RO denied the claims on the same basis as the Board, and provided the veteran with an explanation as to why his petition to reopen was deficient, the "duty to inform" him of the evidence necessary to complete his application to reopen his claims has been met. Id.;38 U.S.C.A. § 5103(a). Because the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). II. Respiratory Condition Records show the RO initially denied service connection for a respiratory condition in July 1970 and notified the veteran of its decision, and of his procedural and appellate rights, later that month. Since he did not timely appeal, the decision became final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103. Consequently, to reopen the claim and warrant a de novo review of the record, there must be evidence on file that is both "new and material" to this issue. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Although the RO ultimately denied the claim in May 1995, it made a preliminary finding that new and material evidence had been submitted sufficient to reopen the claim. The Board agrees with that preliminary finding-particularly since, in the RO's initial decision in July 1970, it found that there was no medical evidence of a respiratory condition at any time during service (which lasted from September 1952 to July 1954), or at any time subsequent to service up until the issuance of that decision. A more careful review of the medical records concerning his service, however, indicates that he received treatment in August 1953 for, among other symptoms, a history of a cough. His doctors diagnosed an upper respiratory infection (URI). Also, during a physical examination in May 1958, about 4 years after service, he indicated on a medical history questionnaire that he had experienced "whooping cough." Although he said he had never experienced a chronic cough, or chronic or frequent colds, asthma, shortness of breath, pain or pressure in his chest, allergies (hay fever), etc., and did not show evidence of any sort of respiratory condition during the objective clinical portion of that evaluation, or for many ensuing years, there have been numerous times since November 1978 when various respiratory conditions have been diagnosed- namely, asthma, bronchitis, reactive airway disease, and chronic obstructive pulmonary disease (COPD). Also, his wife and a friend have submitted statements on his behalf commenting on symptoms-such as a persistent cough-they have noticed him experiencing during the years since service. Thus, these records, when considered collectively and presumed to be credible in accordance with the Court's holding in Justus, show that he at least has the condition he is claiming; that he experienced relevant symptoms (and received a relevant diagnosis) during service; and that he reported a relevant history of symptoms about 4 years after service. Hence, this evidence is "new and material" to his case and sufficient to reopen his claim. See Cox, 5 Vet. App. at 98; Evans, 9 Vet. App. at 282-83, Glynn, 6 Vet. App. at 528-29. Having determined that new and material evidence has been submitted to reopen this claim does not end the analysis. The next determination that must be made is whether the claim is "well grounded." See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). A claim is "well grounded" if it is "plausible, meritorious on its own or capable of substantiation." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The initial burden of showing that a claim is well grounded-if judged by a fair and impartial individual-resides with the veteran; if it is determined that he has not satisfied his initial burden of submitting evidence sufficient to show that his claim is well grounded, then his appeal must be denied, and VA does not have a "duty to assist" him in developing the evidence pertinent to his claim. See Slater v. Brown, 9 Vet. App. 240, 243 (1996); Murphy, 1 Vet. App. at 81-82. In order for a claim for service connection to be well grounded, there must be competent evidence (lay or medical, as appropriate) of: (1) a current disability; (2) an in- service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Epps v. Gober, 126 F.3d 1464, 1468 (1997); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition during service, and that he still has such condition. See also 38 C.F.R. § 3.303(d). Such evidence, however, must be medical unless it relates to a condition as to which, under the case law of the Court, lay observation is competent. If the chronicity provision is not applicable, a claim still may be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service, provided that continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In this case, based on the evidence discussed in the reopening of the claim, the veteran clearly has met his burden of submitting competent medical evidence of current disability since various records since November 1978 contain diagnoses of asthma, bronchitis, reactive airway disease, and COPD. Consequently, he obviously has present disability attributable to his respiratory impairment, and has for quite sometime. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Thus, this point is not in dispute. He also has met his burden of submitting competent evidence of relevant disease in service since his military medical records confirm that he experienced a problem with a cough while on active duty and that his doctors diagnosed an URI. He also reported a relevant history of a cough, albeit while denying other relevant symptoms, during the physical examination in May 1958, about 4 years after his service in the military ended. Therefore, it is conceded that he experienced relevant respiratory pathology during service. See Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991). The dispositive issue thus becomes whether there is competent medical evidence linking any of his current symptoms to those noted in service. There is no such evidence in this case, so the claim-although reopened-must be denied as not well grounded. A doctor at the Duke University Medical Center indicated in a November 1978 statement that the veteran had a history of episodic asthma (asthmatic bronchitis) dating back to 1973- which was many years (in fact, nearly 20) after the veteran's service in the military ended. The Duke physician did not indicate or otherwise suggest that the veteran's asthma existed prior to 1973 or that it is related to the respiratory symptoms he experienced during service or the diagnosis of an URI that was made during service. Similarly, although there have been numerous additional diagnoses of note during the years since (of asthma, bronchitis, reactive airway disease, and COPD), which were made in the course of him receiving treatment on various occasions during the 1980s and 1990s in a VA outpatient clinic and at the Lincoln Community Health Center, none of the records contain a competent medical opinion etiologically linking the URI that was diagnosed during service, or the symptoms associated with it, to any of the respiratory conditions (asthma, bronchitis, reactive airway disease, or COPD) that were diagnosed many years later, long after service. Medical nexus evidence is a prerequisite to a well grounded claim. See Lathan v. Brown, 7 Vet. App. 359 (1995). Moreover, although the veteran and the others (his wife and friend) who have submitted statements on his behalf can comment on the symptoms-such as a persistent cough-they have noticed him experiencing during the years since service, as lay persons, they do not, in turn, have the medical expertise or training to etiologically link any of the current respiratory conditions to the one noted during service. See King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran apparently is under the mistaken impression that merely receiving treatment for a respiratory condition of some sort during service (here, an URI), and later receiving various diagnoses of respiratory conditions after service (here, of asthma, bronchitis, reactive airway disease, and COPD) is tantamount to a grant of service connection. However, this simply is not true in the absence of competent medical nexus evidence establishing a correlation between the symptomatology noted in service, and that noted many years later after service. See Savage, 10 Vet. App. at 498; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Since the veteran has not satisfied his initial burden of submitting evidence sufficient to show that his claim for service connection for a respiratory condition is well grounded, VA is under no "duty to assist" him in developing the evidence pertinent to his claim. See Morton v. West, 12 Vet. App. 477 (1999); Epps, 126 F.3d at 1468 (1997). During his August 1999 video-conference hearing before the undersigned Member of the Board, he alleged that he began receiving treatment for his respiratory disability at the VA Medical Center (VAMC) in Durham, North Carolina, in about 1960. Other evidence on file indicates the RO already requested records from this VAMC for the time period in question, but to no avail. To source the records, the RO used his social security (SS) and claim's number (C #)- instead of his service serial number-which he indicated was the method of identification when initially treated. However, the Board finds that further attempts to obtain those records isn't necessary because he went on to note during the hearing that he was unable to locate the records- even after inquiring about them himself. Furthermore, that VAMC submitted all of the contemporaneous records in its possession shortly after the RO's initial decision in July 1970 denying the claim, and the records did not pertain to treatment for a respiratory condition-but rather, an inguinal hernia-which obviously has no relevance to the current appeal. Moreover, the Board is aware of no circumstances in this case that would put VA on notice that any additional relevant evidence may exist that, if obtained, would make his claim well grounded. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). The Board also recognizes that this claim is being disposed of in a manner that differs from that employed by the RO. The RO denied the veteran's claim essentially on the merits, whereas the Board has concluded that the claim is not well grounded. However, the Court has held that, when an RO does not specifically address the question of whether a claim is well grounded-but rather, as here, proceeds to adjudicate it on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis. See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). Furthermore, the Board observes that, in the May 1996 SOC, the RO notified the veteran of the legal requirement to submit a well-grounded claim and of the need to submit evidence showing that his respiratory disability either was incurred in or aggravated by his service in the military. Thus, the "duty to inform" him of the evidence necessary to complete his application for service connection has been met. 38 U.S.C.A. § 5103(a) (West 1991); Franzen v. Brown, 9 Vet. App. 235, 238 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER The petition to reopen the claim for service connection for hypertension is denied. The petition to reopen the claim for service connection for an eye condition is denied. The petition to reopen the claim for service connection for a respiratory condition is granted; however, as evidence showing that this claim is well-grounded has not been submitted, service connection is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals