Citation Nr: 0003440 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 96-49 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for post-operative right hammertoe residuals. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran had active service from October 1951 to October 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1995 rating decision of the Nashville, Tennessee, Regional Office (RO) which determined that the veteran had not submitted new and material evidence to reopen his claim of entitlement to service connection for post-operative right hammertoe residuals. In August 1999, the RO determined that its May 1956 rating decision denying service connection for post-operative right hammertoe residuals was not clearly and unmistakably erroneous. The veteran was informed of the decision in August 1999. The veteran has been represented throughout this appeal by the American Legion. The veteran has not submitted a notice of disagreement with the August 1999 RO determination that the May 1956 rating decision denying service connection for post-operative right hammertoe residuals was not clearly and unmistakably erroneous. In his January 2000 Written Brief Presentation, the national accredited representative acknowledged the absence of a notice of disagreement as to that issue. Therefore, the issue is not before the Board for appellate consideration and will not be addressed below. It is not harmless error when the Board ignores jurisdictional thresholds. McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). If the veteran wishes to further pursue the issue, he should submit a timely notice of disagreement. FINDINGS OF FACT 1. In May 1956, the RO denied service connection for post-operative right hammertoe residuals. In May 1956, the veteran was informed in writing of the adverse decision and his appellate rights. He did not submit a notice of disagreement with the decision. 2. The evidence submitted since the May 1956 RO decision is relevant and probative of the issue at hand. 3. A chronic right foot disability was not shown during active service or for many years after service separation. The record contains no competent evidence attributing the veteran's current right foot disabilities to active service. CONCLUSIONS OF LAW 1. The May 1956 rating decision denying service connection for post-operative right hammertoe residuals is final. New and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for post-operative right hammertoe residuals has been presented. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). 2. The claim of entitlement to service connection for post-operative right hammertoe residuals is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). In reviewing an application to reopen a veteran's claim of entitlement to service connection, the United States Court of Appeals for Veterans Claims (Court) has held that: [T]he Secretary must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a)(1998) in order 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 the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), 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, the Secretary may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C. § 5107(a) has been fulfilled. Winters v. West, 12 Vet. App. 203, 206 (1999), citing Elkins v. West, 12 Vet. App. 209 (1999). In May 1956, the RO denied service connection for post-operative right hammer toes upon its determination that the claimed disorder was a congenital abnormality; it had not been aggravated during active service; and the veteran's inservice right hammertoe surgical procedural was remedial in nature. In May 1956, the veteran was informed in writing of the adverse decision and his appellant rights. He did not submit a notice of disagreement with the decision. The evidence upon which the RO formulated its May 1956 rating decision may be briefly summarized. The report of the veteran's October 1951 physical examination for service entrance indicates that he exhibited normal feet. An August 1953 naval treatment record notes that the veteran exhibited a right fifth toe deformity "either of congenital origin or due to polio at the age of 2." A November 1953 naval treatment record states that the veteran exhibited a right fifth hammertoe. A January 1954 Army hospital summary relates that the veteran complained of increasing right foot symptoms and exhibited right fourth and fifth hammertoes "which had been present all of his life." The veteran was diagnosed with right fourth and fifth hammertoes of unknown cause. He subsequently underwent plastic revision of his right fourth and fifth hammertoes. The treating military personnel commented that the veteran's right fourth and fifth hammertoes had existed prior to service entrance. Title 38 of the Code of Federal Regulations (1999) states, in pertinent part, that: "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 the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the case. 38 C.F.R. § 3.156(a) (1999). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence submitted since the May 1956 RO decision denying service connection consists of additional original service medical records, Department of Veterans Affairs (VA) treatment records, and written statements from the veteran. The service medical records reflect treatment of the veteran's right toes. Therefore, the Board finds that this additional evidence is new and material as to the issue of the veteran's entitlement to service connection for post-operative right hammertoe residuals and is therefore sufficient to reopen his claim. As his claim for service connection has been reopened, it is necessary to determine whether the veteran has submitted a well-grounded claim for service connection. Generally, a "well-grounded" claim is one which is plausible. The Court has directed that, in order for a claim for service connection to be well-grounded, there must be (1) competent evidence of a current disability; (2) proof as to incurrence or aggravation of a disease or injury in service; and (3) competent evidence as to a nexus between the inservice injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for chronic disability resulting from disease or injury incurred in or aggravated in line of duty while in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). 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 fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). At his October 1951 physical examination for service entrance, the veteran neither complained of nor exhibited a right foot disorder. A November 1953 clinical record indicates that the veteran exhibited a right fifth toe deformity which was determined to be either of a congenital nature or secondary to his childhood poliomyelitis. A January 1954 Army hospital summary notes that the veteran underwent surgery for right fourth and fifth hammertoes. Treating military medical personnel advanced a diagnosis of right fourth and fifth hammertoes of unknown cause. They concluded that the veteran's hammertoes had existed prior to enlistment and not been incurred in the line of duty. At his September 1955 physical examination for service separation, the veteran was found to exhibit normal feet. VA clinical documentation dated between February and July 1994 indicates that the veteran had a two year history of a chronic diabetic plantar ulcer located at the base of his right fifth toe. A February 1995 VA hospital summary from the Nashville, Tennessee, VA Medical Center conveys that the veteran was diagnosed with insulin dependent diabetes mellitus and a right plantar malperforans ulcer. He subsequently underwent excision of the malperforans ulcer and amputation of the right fifth metatarsal head. In his April 1995 informal application to reopen his claim of entitlement to service connection, the veteran advanced that he underwent an inservice right foot surgical procedure; recently experienced "more problems with this foot;" and underwent a surgical procedure at the Nashville, Tennessee, VA Medical Center. In a January 1996 written statement, the veteran advanced that service connection for the claimed disability was warranted as he had no right foot disability prior to service entrance; was treated for right fourth and fifth toe problems during active service; and recently had a plantar ulcer on the fourth toe. In his September 1996 notice of disagreement, the veteran advanced that his right foot disability had been aggravated during active service. He reported that he had undergone additional foot surgery at the Nashville, Tennessee, VA Medical Center in February 1996. The Board has weighed the probative evidence of record including the veteran's statements on appeal. The veteran's service medical records convey that he did not exhibit a right foot disability at either his physical examination for service entrance or his physical examination for service separation. Such findings tend to establish that the veteran's inservice post-operative right fourth and fifth hammer toe disability resolved without chronic residuals. The veteran's current right fifth toe disabilities have been attributed to complications of his nonservice-connected diabetes mellitus. There is no competent evidence establishing that a chronic right foot disability originated in or was aggravated by active service. No physician has advanced any findings that the veteran's current right foot disabilities existed prior to service entrance and were aggravated during active service. Indeed, the veteran's claim is supported solely by the accredited representative's and his own statements on appeal. The Court has held that lay assertions of medical causation do not constitute competent evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Savage v. Gober, 10 Vet. App. 488 (1997). The Court has commented that: Just as the BVA must point to a medical basis other than its own unsubstantiated opinion (Colvin [v. Derwinski, 1 Vet. App. 174, 175 (1991)]), the veteran cannot meet his initial burden by relying upon his own, or his representative's, opinions as to medical matters. Robinette v. Brown, 8 Vet. App. 69, 74 (1995). There is no indication that either the veteran or the accredited representative is a medical professional. To the extent that the lay statements attempt to question a medical diagnosis or other clinical determinations as to the origins or existence of the claimed disorder, they may not be considered as competent evidence. Statements as to what the veteran may have been told by a physician during or after service, standing alone, are insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 4, 6 (1993). As the record lacks competent evidence establishing that an etiological relationship exists between the veteran's current right foot disabilities and active service, the Board concludes that the veteran's claim for service connection is not well-grounded. Accordingly, the instant claim is denied. 38 U.S.C.A. § 5107 (West 1991). Winters v. West, 12 Vet. App. 203 (1999). The Board acknowledges that it has decided the current appeal on a different basis than did the RO. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the veteran has been given adequate notice and opportunity to respond and, if not, whether he will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes that he has not been prejudiced by the decision herein. The veteran was denied by the RO. The Board considered the same law and regulations. The Board merely finds that the veteran did not meet the initial threshold evidentiary requirements for a well-grounded claim. The result is the same. See Meyer v. Brown, 9 Vet. App. 425, 431 (1996). ORDER The veteran's application to reopen his claim of entitlement to service connection for post-operative right hammertoe residuals is granted. Service connection for post-operative right hammertoe residuals is denied. J. T. HUTCHESON Acting Member, Board of Veterans' Appeals