BVA9507870 DOCKET NO. 93-03 817 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for pulmonary tuberculosis. REPRESENTATION Appellant represented by: American Defenders of Bataan and Corregidor, Inc. ATTORNEY FOR THE BOARD A. D. Jackson, Associate Counsel INTRODUCTION The veteran had recognized guerrilla service from August 1944 to August 1945 and active service from August 1946 to April 1947. His service records reflect he was born in February 1927. Entitlement to service connection for pulmonary tuberculosis disorder was previously denied by the Board of Veterans' Appeals (Board) in January 1992. Rating decisions dated in May and August 1992 determined that the veteran had not submitted new and material evidence to reopen his claim for service connection for pulmonary tuberculosis. The Court of Veterans Appeals (Court) has held that the Board is required to review all of the evidence submitted by the veteran since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on a de novo basis. See, Glynn v. Brown 6 Vet.App. 523 (1994). Therefore, the Board shall review the evidence that has been submitted since a May 1972 rating decision which denied service connection for pulmonary tuberculosis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends service connection for pulmonary tuberculosis is warranted. It is argued that evidence submitted is new and material and, therefore, sufficient to reopen the veteran's claim and also grant service connection. Specifically, the veteran contends that he was confined to the Quezon Institute in 1945 for pulmonary tuberculosis and has continued to suffer from pulmonary tuberculosis since that period of time. 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 the evidence submitted since the May 1972 denial of service connection for pulmonary tuberculosis is new and material and, hence, the claim is reopened. However, the preponderance of the evidence is against the veteran's claim for service connection for pulmonary tuberculosis. 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 veteran was notified in May 1972 of the RO's denial of service connection for pulmonary tuberculosis. He did not perfect a timely appeal. A decision of the Board in January 1992 upheld the RO's decision to deny service connection for pulmonary tuberculosis but was not on the merits. 3. The evidence submitted since May 1972 is not cumulative or redundant, and is sufficiently probative to reopen the claim of service connection for pulmonary tuberculosis disorder. 4. The probative evidence of record does not show that pulmonary tuberculosis was manifested during the veteran's recognized guerrilla service or during his active duty service. Also, there is no credible evidence establishing or confirming a diagnosis of pulmonary tuberculosis within three years of service discharge. CONCLUSIONS OF LAW 1. Evidence received since the May 1972 denial of entitlement to service connection for pulmonary tuberculosis constitutes new and material evidence sufficient to reopen the veteran's claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). 2. The evidence does not establish that pulmonary tuberculosis was incurred in or aggravated by wartime service, either directly or presumptively. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the appellant has submitted a well-grounded claim and, if so, whether the Department of Veterans Affairs (VA) has assisted the appellant in properly developing his claim. A "well-grounded" claim is one that is not implausible. The appellant's claim appears to be reasonably based. A review of the evidence further indicates that all relevant facts have been properly developed and there is sufficient evidence upon which to fairly resolve the issue raised by the instant case. Therefore, a remand in order to permit additional development of the record is unnecessary. The RO in May 1972 denied service connection for pulmonary tuberculosis. The evidence of record at that time may be briefly summarized. There were no service medical records showing manifestations, complaints or treatment referable to pulmonary tuberculosis. Personnel records from the Army of the Philippines dated in September 1945 indicate that the veteran underwent a physical examination. The physical examination report indicates that the lungs were considered clinically normal. The Processing Affidavit for Philippine Army Personnel dated in October 1945 shows that the veteran reported that he had not incurred any illnesses or wounds during his guerrilla service. The veteran underwent a physical examination upon entrance into the New Philippine Scouts (active military service) in August 1946. The veteran did not report a history of pulmonary tuberculosis and the physical examination report conveys that a X-ray of the lungs was negative. The report of the physical examination at discharge dated in March 1947 also indicated that the lungs were normal and a chest X-ray was negative. The blood serology results were also negative. The veteran was notified by letter in May 1972 that service connection had been denied for pulmonary tuberculosis. The veteran did not perfect a timely appeal. In April 1986, the veteran submitted a photocopy of an August 1945 clinical report from DeLuna Hospital with a provisional diagnosis of pulmonary tuberculosis. Included in this report, are the results of a X-ray reportedly showing minimal pulmonary tuberculosis. However, the report allegedly conducted in 1945 shows the veteran age as 48, as well as, other indications that the report was done subsequent to 1973. In April 1988, the veteran submitted a radiology report from Quezon Institute dated in April 1945 also showing a diagnosis of minimal bilateral tuberculosis. However, this indicates that in 1945, the veteran's age was 62. A March 1989 VA radiology report shows that the veteran submitted a private X-ray that was undated for interpretation. The radiologist reported that the radiograph was technically unsatisfactory for interpretation due to stains and overpenetration. A March 1989 rating decision declined to reopen his claim. The veteran submitted a private roentgenological report from Andaya Medical Center, dated in April 1989, showing diagnoses of moderately advanced pulmonary tuberculosis and bilateral atheromatous aorta pneumonitis, right lower lobe. In September 1989, the veteran submitted a photocopy of a hospital admission card from Quezon Institute dated in July 1945. It indicated that the veteran was treated for malaria, pneumonia, and lung trouble. In October 1989, the VA requested records from Quezon Institute and the veteran. The veteran submitted photocopies of outpatient records from Quezon Institute, dated in April 1945, showing treatment for malaria and pneumonia. Also submitted was a case record from July 1945 indicating he was admitted for treatment of malaria, pneumonia and "lungs trouble (left & right)." A November 1989 VA radiographic report shows that the veteran submitted an X-ray (dated in April 1945) for interpretation. The film was not considered completely satisfactory due to artifacts and stains. It was further reported that parts of the film had been cut. The examiner's interpretation indicated pulmonary infiltrations, both upper lobes, etiology undetermined. He recommended clinical correlation and comparison with later film for better evaluation. In June 1990, the veteran submitted an affidavit of a fellow serviceman, Mr. [redacted]. He reported he served with the veteran and that the veteran was sick and hospitalized for tuberculosis during service. In September 1990 and April 1991 the veteran presented testimony at personal hearings. He reported his medical history and current symptoms. Also present at the April 1991 hearing was Mr. [redacted] who indicated that he was a fellow serviceman of the veteran. He stated that the veteran was a "strong person" between 1942 and 1945 (at their separation) and that when he saw the veteran in 1990, he was frail. He related that the veteran was confined at Quezon Institute. He also related that the veteran became sick from lying in the dirt and rain in the mountains. In May 1991, the veteran submitted an April 1991 private X-ray report of the lungs. The report indicated a hazy apex with fibroexudative lesions at the mid-lung zone (right hemithorax) and exudate lesions at the first interspace of the left hemithorax. He also submitted a color photograph of himself. A Report of Contact dated in December 1991, indicates that the Dupont Company of Dallas, Texas was contacted for the purpose of authenticating the X-ray film submitted by the veteran in 1989. It was reported that the film would have to be submitted for testing to authenticate. However, it was noted that if the film was polyester based it was no more than 30 years old. A Board decision dated in January 1992 determined that the veteran had not submitted new and material evidence to reopen his claim and denied service connection for pulmonary tuberculosis. Subsequent to the January 1992 Board denial the veteran submitted an affidavit dated and signed in March 1992, by Pedro Anover. He reported that he was the personal physician of the veteran. He further stated that he treated the veteran for pulmonary tuberculosis and viewed the hospital records including X-ray film indicating pulmonary tuberculosis in 1946. This was reiterated in statements received in September and November 1992. He also indicated that the veteran had been under his care since that period of time. The veteran also submitted duplicate service records. 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 an appellant's claim, a rating determination is final and is not subject to revision upon the same factual basis. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). However, if new and material evidence is presented or secured with respect to a claim which 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). Therefore, the issue presently before the Board is whether new and material evidence has been submitted since the May 1972 decision denying service connection for pulmonary tuberculosis. Title 38 of the Code of Federal Regulations (1994) 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) (1994). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is merely cumulative of other evidence already present in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) citing Williams v. Sullivan, 905 F. 2d 214, 216 (8th Cir. 1990). When evidence is material, it means that there is a reasonable possibility that consideration of the new evidence, when viewed in the context of all of the evidence, would change the outcome of the appeal. Cox v. Brown, 5 Vet.App. 95, 98 (1993). With respect to the additional evidence, as noted above, evidence added to the record since May 1972, includes various radiological reports; sworn testimony and written statements of the veteran and [redacted]; and, written statements from the veteran's private physician, Pedro Anover, who essentially supports the veteran's contentions and concludes the veteran suffers from pulmonary tuberculosis. In determining whether evidence is new and material, the credibility of the evidence is to be presumed. This presumption is made only for the purpose of determining whether the case should be reopened. Justus v. Principi, 3 Vet.App. 510 (1992). Assuming that the statements including those of the veteran's friend, and Dr. Anover are credible and since they pertain specifically to the veteran's condition and bear directly on the question concerning service connection for pulmonary tuberculosis and include information not previously considered, it is found that this information is new and material. Accordingly, the claim is reopened and will be reviewed on a de novo basis. In considering a similar factual scenario, the Court has held that: ... when, as here, the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 394 (1993). Given this fact, a determination must be made as to whether the veteran has been provided with an opportunity to submit further evidence, testimony and argument in support of his claim. The veteran has submitted a written presentation that details his entire argument including those that pertain to the merits of the claim. He has consistently presented the same argument, namely that he incurred pulmonary tuberculosis in 1945 and was treated shortly after service discharge. Further, the veteran has been provided notice of the need to submit evidence especially, X-rays or other clinical evidence in support of his service connection claim. Therefore, the Board's de novo review of the record will result in no prejudice to the veteran. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served continuously for 90 days or more during a period of war and tuberculosis becomes manifest to a degree of ten percent within three years of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Evidence of activity on comparative study of X-ray films showing pulmonary tuberculosis within the three-year presumptive period provided by 38 C.F.R. § 3.307(a)(3) (1994) will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods but service connection and evaluation may be assigned only from the date of such diagnosis of evidence of clinical activity. 38 C.F.R. § 3.371(a) (1994). The provisions of 38 C.F.R. § 3.374 (1994) clarify that: (a) Service diagnosis. Service department diagnosis of active pulmonary tuberculosis will be accepted unless a board of medical examiners, Clinic Director or Chief, Outpatient Service certifies, after considering all the evidence, including the favoring or opposing tuberculosis and activity, that such diagnosis was incorrect. Doubtful cases may be referred to the Chief Medical Director in Central Office. (b) Department of Veterans Affairs diagnosis. Diagnosis of active pulmonary tuberculosis by the medical authorities of the Department of Veterans Affairs as the result of examination, observation, or treatment will be accepted for rating purposes. Reference to the Clinic Director or Chief, Outpatient Service, will be in order in questionable cases and, if necessary, to the Chief Medical Director in Central Office. (c) Private physician's diagnosis. Diagnosis of active pulmonary tuberculosis by private physicians on the basis of their examination, observation or treatment will not be accepted to show the disease was initially manifested after discharge from active service unless confirmed by acceptable clinical, X ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment. In this regard, as noted, the veteran's service medical records are negative for any pulmonary complaints. In fact, in October 1945, the veteran specifically noted that he had not incurred any illnesses or wounds during his guerrilla activities. Also, the service medical indicates there is no evidence of pulmonary tuberculosis at his enlistment examination for the New Philippine Scouts in August 1946. Still further, he fails to report a history of tuberculosis at his separation examination in March 1947, nor does this examination reveal any pulmonary abnormalities. Despite this lack of evidence of pulmonary tuberculosis in service, as noted above, service connection may be granted for pulmonary tuberculosis if the evidence demonstrates that active tuberculosis was diagnosed by acceptable means within three years of service discharge. However, there is no credible evidence indicating that the veteran had active pulmonary tuberculosis within three years from the date of service discharge. It is noted that the veteran has presented written statements and sworn testimony, as well as, a physician's affidavit alleging that he was diagnosed and hospitalized with pulmonary tuberculosis in 1945. It is the duty of the Board as the fact-finder to determine credibility of the testimony and other lay evidence. Culver v. Derwinski, 3 Vet.App. 292 (1992). In this respect, these statements are contradicted by the documentary evidence of record, particularly, the service records that indicate that the veteran's lungs were normal during service and at separation. Furthermore, the RO has requested records from Dr. Anover and the veteran to support this diagnosis. However, neither the veteran nor the physician has provided clinical confirmation to substantiate this claim. As noted above, 38 C.F.R. § 3.374(c) (1994), expressly states that when a private physician diagnoses pulmonary tuberculosis, this must be confirmed by clinical, X-ray, or laboratory studies, or findings of active tuberculosis based upon acceptable hospital observation or treatment. Over the years, the veteran has submitted different radiographs as well as radiographic reports supposedly taken in 1945. As noted above, these X-ray reports have not only contained inaccurate and inconsistent information, the submitted X-ray films have been found to be of poor quality and are not particularly reliable. It is found that the service medical records and the contemporaneous statements of the veteran denying any illnesses or wounds, are inherently more persuasive. In point of fact, the inconsistencies in the films lead to a conclusion that they are not authentic films taken of the veteran in 1945. The Board did also consider the sworn testimony and written statements furnished by the veteran and his friend at the veteran's personal hearing. They reported their observations and his friend related the subjective complaints rendered by the veteran during service and afterwards. Although these observations are informative, the lay statements are not sufficient to substantiate a diagnosis of pulmonary tuberculosis during active military service or within three years of service discharge; as indicated, medical substantiation is required. Moreover, the veteran's statements have been shown to be not credible or believable, because they are inconsistent with service personnel and medical records and are highly suspect when the record is reviewed in its entirety. Accordingly, without credible evidence of a diagnosis or other pertinent evidence establishing clinical activity of pulmonary tuberculosis in service or within the presumptive period thereafter, service connection for pulmonary tuberculosis is not warranted. ORDER Entitlement to service connection for pulmonary tuberculosis is denied. E. W. SEERY 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 that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.