Citation Nr: 0005595 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 98-07 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hypertensive cardiovascular disease. 2. Entitlement to service connection for residuals of a left leg injury. 3. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran had honorable active duty service from November 1945 to January 1949. He also had a period of active service from February 1949 to March 1950 which, because it was terminated under dishonorable conditions, may not be considered for VA disability compensation purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 1970 and March 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The April 1970 rating decision denied service connection for left leg injury. The March 1997 rating decision found that new and material evidence had not been presented to reopen a prior final November 1957 rating decision which had denied service connection for hypertensive cardiovascular disease. The issue of entitlement to service connection for residuals of a left leg injury is addressed in the REMAND portion of this decision. As a notice of disagreement (NOD) was filed to the denial of the claim for service connection for a back disability, this issue is also addressed below in the REMAND portion of this decision. FINDINGS OF FACT 1. In November 1957, the RO denied service connection for hypertensive cardiovascular disease; the veteran was duly notified of the decision in November 1957 and did not enter a notice of disagreement within one year of the date of notice of the rating decision. 2. Evidence added to the record since the November 1957 RO rating decision is of sufficient significance that it must be considered in order to fairly decide the merits of the veteran's claim for service connection for hypertensive cardiovascular disease. 3. There is no competent medical evidence of record to demonstrate a nexus between the veteran's current hypertensive cardiovascular disease and his honorable service. CONCLUSIONS OF LAW 1. The November 1957 rating decision denying entitlement to service connection for hypertensive cardiovascular disease is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. Evidence received since the November 1957 rating decision pertinent to the issue of service connection for hypertensive cardiovascular disease is new and material, and the veteran's claim for service connection for hypertensive cardiovascular disease is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1999). 3. The veteran's claim of entitlement to service connection for hypertensive cardiovascular disease 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 a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). 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. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Where a veteran who served for 90 days or more during a period of war develops cardiovascular disease, including hypertension, to a degree of 10 percent or more within one year from separation from such service, such disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1999). Generally, a final decision issued by a RO may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. See 38 U.S.C.A. § 7105(c) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states, in part, that "[i]f 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." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). 38 C.F.R. § 3.156(a) (1999) provides that "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears "directly and substantially" upon the specific matter under consideration. Such evidence must be neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, such evidence must be "so significant that it must be considered in order to fairly decide the merits of the claim." See generally Hodge v. West, 155 F. 3d 1356 (Fed. Cir.1998). In this case, as there is a prior unappealed rating decision, the claim may not be reopened and allowed unless new and material evidence is presented. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156(a). In November 1957, the RO denied service connection hypertensive cardiovascular disease. The veteran was duly notified of the decision in November 1957 and did not thereafter enter a notice of disagreement within one year of issuance of notification of the rating decision. Therefore, the November 1957 rating decision denying entitlement to service connection for hypertensive cardiovascular disease became final. See 38 U.S.C.A. § 7105(b),(c); 38 C.F.R. §§ 20.302, 20.1103. The evidence which was of record at the time of the November 1957 RO rating decision included service medical records and the veteran's application for compensation. Service medical records for the period of the veteran's honorable service (November 1945 to January 1949) reflect no complaints, findings, or diagnosis of hypertension or a cardiovascular disorder. At the January 1949 service separation examination, the veteran indicated that he did not have, and had not experienced, pain or pressure in the chest, palpitation or pounding heart, high or low blood pressure, or shortness of breath. The January 1949 service separation examination was negative for complaints, findings, or diagnosis of hypertension or cardiovascular disability. It was not until later in 1949 during the veteran's second period of service, which was under dishonorable conditions, that the veteran was noted to have possible asymptomatic hypertension and an undiagnosed condition manifested by chest pain. A medical consultant opined that, if the veteran were to limit his continual excess abuse of alcohol, his blood pressure would be normal. Examination in March 1950 likewise notes that the veteran had complaints of chest pain and high blood pressure, and that he had been treated for this condition in Austria during this second period of service. An April 1957 letter to the VA Hospital, Indianapolis, reflects that the veteran reported that he first received treatment in the Fall of 1949. On his October 1957 Application for Compensation, the veteran wrote that he had received treatment for a heart condition and high blood pressure in 1949. Based on this evidence, the RO, in a November 1957 rating decision, found that, because no heart condition was shown during the veteran's period of honorable service, and a diagnosis in 1949 showed the veteran was addicted to alcohol, service connection for hypertensive cardiovascular disease was not warranted. The November 1957 rating decision denied service connection for hypertensive cardiovascular disease. The pertinent additional evidence submitted since the November 1957 rating decision includes personnel information, VA examination reports dated in October 1967, March 1970, July 1970, December 1996, and July 1998, multiple statements by the veteran, multiple private physician statements, private medical records, a Civil Service Retirement System examination report, and multiple private physician letters. Federal employment records reflect that in the 1950's the veteran worked as a laborer-cleaner, ordnance worker, and heavy laborer, with disability retirement from July 1957 to January 1963 due to high blood pressure and heart condition, diagnosed as arterial hypertension, aortic insufficiency, and history of frequent angina pectoris, and disability retirement in 1967. U.S. Civil Service Commission personnel records reflect that the veteran began disability retirement in 1967 due to high blood pressure and a heart condition. An associated report of physician's examination in May 1967 reflects that the veteran reported his disability manifested by chest pain and shortness of breath had its onset in April 1967, and the resulting diagnosis was angina pectoris due to arteriosclerotic cardiovascular disease. A letter from a private physician, Thomas Gootee, M.D., dated August 1967, reflects that the veteran was disabled beginning in April 1967 due, in part, to angina pectoris due to atherosclerotic heart disease. An October 1967 VA examination report reflects the veteran's reported history of heart attack in April 1967, and complaints of chest and arm pain and numbness of the arm and hand and shortness of breath, and included the diagnosis of angina pectoris by history. A March 1970 VA examination report notes the veteran's complaints of chest pain and left arm pain and shortness of breath, and resulted in diagnoses of mild hypertension and angina pectus, by history. In multiple statements and letters, the veteran repeats the history of complaints and treatment from August 1949 to the present. For example, in a statement received in October 1967, he wrote that in 1949 he had been in an Army hospital for high blood pressure and a heart condition. In a June 5, 1970 statement, the veteran wrote that he had been hospitalized in 1949 for high blood pressure and a heart condition, was employed from 1952 to 1957 at NAD Crane, then received a medical Civil Service pension. In a letter dated in July 1970, Dr. Gootee wrote that the veteran had severe coronary insufficiency on mild exertion due to arteriosclerotic cardiovascular disease. A July 1970 examining physician's Medical Certificate reflects diagnoses of old myocardial infarction and anginal pain. Multiple hospital and treatment records, received in November 1996, reflect diagnoses and treatment for various unrelated conditions, including diabetes mellitus and orthopedic complaints, chronic lung disease secondary to cigarette abuse, and continued treatment for heart disease and hypertension, including peripheral vascular disease, angina pectoris, and coronary artery bypass grafting. A VA compensation examination in December 1996 noted the veteran's relevant history of hypertension, heart attacks beginning in 1960, and in 1964 and 1968, status post angioplasty times two, subsequent coronary artery bypass grafting times five, bilateral carotid endarteriectomies, and significant peripheral vascular disease. In June 1998, Dr. Gootee wrote that the veteran was totally disabled and homebound due to several diagnosed conditions, which included hypertension. A VA compensation examination in July 1998 again noted the veteran's history of high blood pressure in 1949, and coronary artery bypass graft, and entered diagnoses which included coronary artery bypass graft in January 1992, status post multiple myocardial infarctions since 1954, peripheral vascular disease, status post bilateral lower extremity bypass graft in February 1997, left carotid surgery in 1992, episode of transient ischemic attack with left-sided weakness for a week in June 1998, and hypertension since 1949. In a statement dated in February 1999, Dr. Gootee listed the veteran's current disabilities, which, among others, included coronary insufficiency with angina, valvular heart disease with aortic stenosis, essential hypertension, hyperlipidemia, and peripheral vascular disease. The Board finds that the evidence reflecting the veteran's reported history of treatment for a heart condition and high blood pressure beginning in 1949, often repeated, is not new, as it was of record at the time of the November 1957 rating decision. However, the Board finds that the evidence added to the record since the November 1957 rating decision, which reflects the current level of hypertensive cardiovascular disability, with various diagnoses not previously of record, is new, and is sufficiently significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a). Accordingly, the veteran's claim for service connection for hypertensive cardiovascular disease is reopened. See 38 C.F.R. § 3.104(a); Hodge, supra. The Court has set forth a three-part analysis to be applied when a claim to reopen is presented. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc). Under the Elkins test, the first step is to determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) to reopen the prior claim. If so, then the second step, whereby 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 Justus v. Principi, 3 Vet. App. 510 (1992), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is not well grounded, the "adjudication process must come to a screeching halt despite reopening because a claim that is not well grounded cannot be allowed." Winters v. West, 12 Vet. App. at 206. If the claim is well grounded, then VA must ensure that the duty to assist has been fulfilled before proceeding to the third step, a merits adjudication. Id. While new and material evidence has been presented to reopen the veteran's claim, the evidence of record does not demonstrate that the claim for service connection for hypertensive cardiovascular disease is well grounded. There is simply no medical evidence of record to demonstrate a nexus between the veteran's current hypertensive cardiovascular disease and associated cardiovascular disability, however diagnosed, and his honorable active duty service. The only medical etiology opinion of record attributed the veteran's possible asymptomatic hypertension in 1949 to his continual excess abuse of alcohol, and indicated that, otherwise, the veteran's blood pressure would have been normal. With regard to examination reports, such as the July 1998 VA examination report, which include as a diagnosis the history of hypertension since 1949, the medical evidence of record still does not demonstrate that the veteran's hypertension or onset of disability manifested by chest pains was manifested to a degree of 10 percent within one year of his period of active honorable service, which ended in January 1949. See 38 C.F.R. §§ 3.307, 3.309, 4.104, Code 7101 (1999). In a letter to his congressman dated in September 1997, the veteran wrote that, when he went to enlist for the third time, he was turned down twice for high blood pressure, and that during hospitalization in Austria in August 1949 doctors told him he had high blood pressure and heart pains. With regard to the veteran's reporting of what he was told by a doctor, however, the Court has held that such a veteran's account, "filtered as it [is] through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). While various medical reports noted the veteran's history of hypertension and cardiovascular disease, none resulted in a medical etiology opinion relating the current disabilities to service. While a lay person such as the veteran is competent to report an injury and describe symptoms, he is not competent to offer evidence which requires medical knowledge, such as a determination of etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (if the only evidence on a medical issue is the testimony of a lay person, the claimant does not meet the burden imposed by 38 U.S.C. section 5107(a) and does not have a well-grounded claim); Moray v. Brown, 5 Vet. App. 211, 214 (1993) (unsupported by medical evidence, a claimant's personal belief, however sincere, cannot form the basis of a well-grounded claim). For these reasons, the Board must find the veteran's claim for service connection for hypertensive cardiovascular disease to be not well grounded. See 38 U.S.C.A. § 5107(a). No further action, including a REMAND for further development, is required. See Winters at 206. As the veteran has not presented a well-grounded claim for service connection for hypertensive cardiovascular disease, the duty to assist the veteran does not arise. See Epps; see also Morton v. West, 12 Vet. App. 477 (1999) (per curiam) (absent the submission of a well-grounded claim, the Secretary cannot undertake to assist a veteran in the development of his or her claim). ORDER New and material evidence has been submitted to reopen the veteran's claim for service connection for hypertensive cardiovascular disease. To this extent, the appeal is granted. The veteran's claim of entitlement to service connection for hypertensive cardiovascular disease is not well grounded. To this extent, the appeal is denied. REMAND I. Service Connection: Residuals of Left Leg Injury An RO decision in April 1970, which denied service connection for residuals of a left leg injury, found that there was no evidence of left leg injury in service and that a left leg disability was not shown by the post-service evidence then of record. The Board notes that, subsequent to that decision, the veteran entered a timely NOD in June 1970, and after a statement of the case (SOC) was issued in July 1970, he entered a substantive appeal, on a VA Form 9, received in July 1970, thus perfecting his appeal to the Board. VA indicated in a letter to the veteran's congressman that, upon receipt of a VA examination report, the claim would be forwarded to the Board. It does not appear from the record that the claim was ever sent to the Board for appellate consideration. Notwithstanding that the RO developed this issue as one of whether new and material evidence had been presented to reopen the April 1970 rating decision, as that decision was placed in appellate status in 1970 but a decision by the Board was never rendered, the April 1970 rating decision was never a "final" decision. Therefore, the veteran's appeal to the Board remains open and the issue on appeal is entitlement to service connection for residuals of a left leg injury. In the April 1970 rating decision, the RO considered the evidence of record at that time. However, subsequent to the issuance of the SOC in July 1970, the pertinent additional evidence submitted includes multiple statements by the veteran, multiple private physician statements, private medical records, VA examination reports in December 1996 and July 1998, and personnel information. Under the provisions of 38 C.F.R. § 20.1304(c) (1999), the Board must refer any evidence not considered by the RO for initial consideration and preparation of a supplemental SOC, unless this procedural right has been waived by the veteran or his representative. No such waiver is of record in this case. Without such a waiver, the Board, in most instances, is required to remand the case to the RO to ensure the veteran's due process rights. II. Service Connection: Back Disability The March 1997 rating decision denied service connection for a back disability, and the veteran was notified of this decision in the same month. In January 1998, the veteran entered a NOD with denial of service connection for a back disability, contending that there was sufficient evidence to allow service connection for a back condition. A SOC, however, erroneously informed the veteran that the issue on appeal was whether new and material evidence had been presented to reopen a claim for service connection for a back disability. As there was no prior final rating decision of record denying service connection for a back disability, however, the issue appealed was actually entitlement to service connection for a back disability, not new and material evidence to reopen a claim. The April 1998 SOC informed the veteran of the regulations pertaining to new and material evidence, but did not provide the law and regulations which pertain to service connection or requirements to present a well-grounded claim. In order to assure that the veteran is not prejudiced thereby, this issue is remanded for issuance of a SOC so advising the veteran. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In the past, the Board has referred such matters back to the RO for appropriate action. However, the Court has indicated that the proper action is to remand the issue to the RO for appropriate action. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the Board is required to REMAND this issue to the RO for issuance of a SOC. Therefore, in order to afford the veteran due process, these issues are REMANDED for the following action: 1. The RO should review the claim for service connection for residuals of left leg injury in light of the additional evidence submitted since the July 1970 SOC. If the claim remains denied, the veteran and his representative should be provided an appropriate supplemental SOC and given the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. 2. The RO should issue a SOC on the issue of entitlement to service connection for a back disability, informing the veteran of the pertinent laws and regulations regarding service connection and well-grounded claims. 3. The veteran has a right to present any additional evidence or argument while the case is in remand status. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); and Falzone v. Brown, 8 Vet. App. 398 (1995). As the claim for service connection for residuals of a left leg injury has been perfected, regardless of whether the veteran's responds to the supplemental SOC, if the benefit is not granted, the RO should return the claim as to this issue to the Board for appellate consideration. Only if the veteran completes his appeal as to the issue of entitlement to service connection for a back condition by filing a timely substantive appeal should the claim as to this issue be returned to the Board. See 38 U.S.C.A. § 7104(a) (West 1991). By this REMAND, the Board intimates no opinion as to any final outcome warranted. R. F. WILLIAMS Member, Board of Veterans' Appeals