BVA9503018 DOCKET NO. 90-49 230 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a neck disorder. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left hip disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran in this case had active service from July 1965 to July 1968. This appeal to the Board of Veterans' Appeals (Board) arises from a July 1989 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. In a decision of December 1968, the RO denied entitlement to service connection for a left hip disorder. In a subsequent decision of January 1977, the Board denied entitlement to service connection for a back disorder. In September 1991, the RO denied entitlement to service connection for a neck disorder. Since the time of these decisions, the veteran has submitted additional evidence in an attempt to reopen his claim. The RO found that such evidence, while new, was not material, and the current appeal ensued. In March 1993, a hearing was held in Cleveland, Ohio, before a traveling member of the Board. A transcript of that hearing is included in the veteran's claims file. The case is now before the Board for further review. Finally, we observe that this case was previously before the Board in June 1991 and September 1993, on which occasions it was remanded for additional development. Such development having been accomplished, the case has been returned to the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran's argument is that RO committed error in denying entitlement to service connection for chronic low back, neck, and left hip disorders, in that such disabilities had their origins during the veteran's period of active military service. Specifically, it is asserted that the veteran's current low back, neck, and left hip disabilities are the result of a parachute jump in service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that new and material evidence to reopen the claims for service connection for chronic low back, neck, and left hip disorders, has not been submitted. FINDINGS OF FACT 1. By a rating decision of December 1968, the RO denied entitlement to service connection for a left hip disorder. 2. In a decision of January 1977, the Board denied entitlement to service connection for a back disorder. 3. By a decision of September 1991, the RO denied entitlement to service connection for a chronic neck disorder. 4. Additional evidence submitted since the time of the aforementioned decisions, respectively, fails to demonstrate the incurrence of chronic back, neck, or left hip disorders in service, or a relationship between these disabilities and any incident or incidents of the veteran's period of active military service. CONCLUSIONS OF LAW 1. Evidence received since the RO denied entitlement to service connection for a chronic left hip disability in December 1968 is new, but not material. 38 U.S.C.A. §§ 5107(b), 5108 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a) (1994). 2. Evidence received since the Board denied entitlement to service connection for a chronic back disorder in January 1977 is new, but not material. 38 U.S.C.A. §§ 5107(b), 5108 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a) (1994). 3. Evidence received since the RO denied entitlement to service connection for a chronic neck disorder in September 1991 is new, but not material. 38 U.S.C.A. §§ 5107(b), 5108 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a) (1994). 4. The decision of the RO in December 1968 denying the veteran's claim for entitlement to service connection for a chronic left hip disorder is final, and may not be reopened. 38 U.S.C.A. §§ 1110, 5107(b), 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.104(a) (1994). 5. The decision of the Board in January 1977 denying the veteran's claim for entitlement to service connection for a chronic back disorder is final, and may not be reopened. 38 U.S.C.A. §§ 1110, 5107(b), 7104(b) (West 1991); 38 C.F.R. § 3.102 (1994). 6. The decision of the RO in September 1991 denying the veteran's claim for entitlement to service connection for a chronic neck disorder is final, and may not be reopened. 38 U.S.C.A. §§ 1110, 5107(b), 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.104(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, we have found that the veteran's claims are "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). However, once entitlement to service connection for a given disorder has been denied by the RO or the Board, that determination is final. In order to later establish service connection for the disorder or disorders in question, it is required that new and material evidence be presented which provides a rational basis warranting a grant of the benefit in question. 38 U.S.C.A. §§ 5107(b), 5108, 7104(b), 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). In the present case, service medical records do not reflect the existence of a chronic back disorder. In that regard, while in February 1966, during the veteran's period of active military service, he injured his back during the course of a parachute jump, that injury was apparently acute and transitory and resolved without residual disability. While in September 1966, approximately seven months later, some spasm was noted in the veteran's back, range of motion measurements conducted at that time were entirely within normal limits. Moreover, at the time of the veteran's service separation examination in May 1968, his spine and musculoskeletal system were entirely normal and no pertinent diagnosis was noted. We acknowledge that, on VA medical examination in October 1968, shortly following the veteran's discharge from service, there was in evidence some wedging and irregularity of the end plates of the middorsal vertebrae, indicative of juvenile epiphysitis (Scheuermann's disease). However, as subsequently defined, this represents no more than a congenital/developmental abnormality, and as such, an inappropriate subject for a grant of service connection. 38 C.F.R. § 3.303(c) (1994). Moreover, a radiographic examination of the veteran's lumbar spine conducted at that same time was unremarkable, with the vertebrae and disc spaces exhibiting a normal appearance. Alignment was likewise normal, as were the paraspinous soft tissues. Spondylosis of the lumbar vertebrae (initially demonstrated in April 1973) was first shown at a point in time too remote from service to be reasonably associated therewith. Additionally, in the opinion of the veteran's VA physicians, there was "no way" to determine whether the veteran's spondylolysis had been precipitated by any accident while in service. Consequently, the Board decision of January 1977, which denied entitlement to service connection for a chronic back disorder, was adequately supported by and consistent with the evidence then of record. That decision has now become final. Evidence received since the time of the Board's January 1977 decision, while new, is not material, as that term has come to be defined under the relevant regulatory criteria. Specifically, recently submitted VA and other records show only continuing treatment for the veteran's postoperative low back problems, with no demonstrated relationship between those problems and any incident or incidents of active military service. Consequently, service connection for a chronic low back disorder is not warranted. Turning to the issue of service connection for a chronic neck disorder, the Board observes that, on a number of occasions during the veteran's period of active service, he received treatment for various neck-related complaints precipitated, in his opinion, by a less-than-perfect parachute jump. However, as was the case with the veteran's back, those problems were acute and transitory, resolving without any chronic disability. In February 1966, it was noted that, though no orthopedic abnormalities of the neck had been found, the veteran had been given a soft cervical collar "because of his complaints." It was further noted that the veteran "promptly" removed this collar, returning to the emergency room the same evening for the same complaints for which he had previously been seen. In the opinion of the examining physician, the history of the veteran's injury was "questionable." This opinion was, apparently, the result of the veteran's claim that he experienced "no particular pain" at the time of his injury, but that his pain "built up gradually." It was noted that, with the exception of voluntary guarding, there was "nothing abnormal" about the veteran's neck. Both active and passive motion were possible and full. Radiographic examination of the neck was within normal limits. On service separation examination in May 1968, and once again on VA examination in October of that same year, the veteran's neck was entirely normal. As of the time of the rating decision in September 1991, no chronic disorder of the neck had been demonstrated. Consequently, that decision was adequately supported by and consistent with the evidence of record, and has now become final. Evidence submitted since the time of the May 1991 decision denying entitlement to service connection for a chronic neck disorder, while new in the sense that it was not previously of record, is not material. More to the point, recently submitted evidence fails to demonstrate the existence of a clinically identifiable neck disorder. While on VA hospitalization in May 1993, there was some slight limit in extension and rotation of the veteran's neck, no adenopathy was present, and the remainder of the examination was unremarkable. Radiographic examination of the veteran's cervical spine was negative for arthritis or any other significant abnormality, and no pertinent diagnosis was noted. Accordingly, absent evidence of a clinically identifiable chronic neck disorder, service connection for such a disability must be denied. Regarding the issue of service connection for a chronic left hip disorder, the Board notes that service medical records, including the veteran's service entrance and separation examinations, are entirely negative for history, complaints, or abnormal findings indicative of the presence of any such disability. On VA medical examination in October 1968, shortly following the veteran's discharge from service, his gait was normal, and his pelvis level. Straight leg raising was within normal limits, as were all hip motions. Radiographic examination of the veteran's hips disclosed no fracture, dislocation, or joint abnormality. The pertinent diagnosis given was "hip condition-not found." Consequently, the rating decision of December 1968, which denied entitlement to service connection for a hip condition, was adequately supported by and consistent with the evidence then of record. That decision is now final. Evidence submitted since the time of the aforementioned December 1968 rating decision, while new in the sense that it was not previously of record, is not material as that term has come to be defined under the relevant regulatory criteria. More concisely, the veteran has yet to demonstrate the existence of any chronic left hip pathology for which service connection might possibly be granted. Accordingly, in the absence of objective clinical evidence of a left hip disorder, service connection for such a disability must be denied. In reaching the above determinations, we have given due consideration to the recent statement of the veteran's spouse regarding his current back problems. Such a statement, however, carries no particular weight when considered in light of the evidence as a whole. Moreover, the veteran's spouse lacks the medical expertise necessary to enter a judgment regarding the medical relationship between the veteran's current back pathology and any claimed inservice onset. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). We have further given due consideration to the veteran's testimony (and that of his spouse) given at the time of various personal hearings, and in particular, the most recent hearing before a traveling member of the Board in March 1993. Such testimony, while informative, is neither credible nor probative when considered in conjunction with the evidence as a whole. The majority of such testimony, consisting as it does of a reiteration of the veteran's previously voiced contentions, adds little or nothing to his case. While we do not doubt the sincerity of the veteran's statements, those statements, in and of themselves, do not provide a persuasive basis for grants of service connection in light of the evidence as a whole. Consequently, we are unable to reach a favorable decision or decisions in this case. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a chronic low back disorder, the benefit sought on appeal is denied. CONTINUED ON NEXT PAGE New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a chronic neck disorder, the benefit sought on appeal is denied. New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a chronic left hip disorder, the benefit sought on appeal is denied. J. U. JOHNSON 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.