BVA9503883 DOCKET NO. 93-10 200 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for hepatitis. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO) which denied the benefits sought on appeal. The veteran, who had active service from April 1969 to November 1970, as well as subsequent periods of active duty training, appealed that decision to the BVA, and the case was received at the Board in May 1993. A November 1985 rating decision denied service connection for a low back disorder and for hepatitis, and an August 1987 rating decision denied service connection for hearing loss. The veteran was notified of each determination and of his appellate rights. The issues of entitlement to service connection for a low back disorder and hearing loss were appealed to the BVA, and a March 1988 BVA decision affirmed the RO's denial of service connection for back and hearing loss disorders. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the RO is incorrect in not granting the benefit sought on appeal. The veteran maintains, in substance, that he sustained an injury to his back while serving on active duty in Vietnam and that he received treatment for his injury during service. The veteran also relates that he sustained subsequent injuries to his back while performing Reserve training. The veteran also contends that he was treated for hepatitis while in Vietnam and that he developed a bilateral hearing loss as a result of acoustic trauma he was exposed to while in Vietnam. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen claims for service connection for hepatitis which was denied by a November 1985 rating decision or low back and hearing loss disorders which were denied by a March 1988 BVA decision; that the RO's November 1985 rating decision and the Board's March 1988 decision remain final; and that the benefits sought on appeal are denied. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A November 1985 rating decision denied service connection for hepatitis. 3. The evidence associated with the claims file subsequent to the RO's November 1985 rating decision does not demonstrate, either alone or in conjunction with the evidence previously of record, that the veteran has residual disability attributable to the hepatitis treated during service. 4. A BVA decision dated in March 1988 denied service connection for back and hearing loss disorders. 5. The evidence associated with the claims file subsequent to the Board's March 1988 decision does not demonstrate, either alone or in conjunction with the evidence previously of record, that the veteran currently has low back or hearing loss disorders which had their onset during service, within one year of the veteran's separation from service, or chronically worsened or increased in severity during service. CONCLUSIONS OF LAW 1. The evidence received since the November 1985 rating decision, which denied service connection for hepatitis, is neither new nor material, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 5107, 5108, 7104, 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a), 20.1105 (1994). 2. The November 1985 rating decision which denied service connection for hepatitis is final. 38 U.S.C.A. §§ 1110, 5107, 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 20.1103 (1994). 3. The evidence received since the March 1988 BVA decision, which denied service connection for a back disorder, is neither new nor material, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a), 20.1105 (1994). 4. The March 1988 BVA decision which denied service connection for a back disorder is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7103, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 20.1100 (1994). 5. The evidence received since the March 1988 BVA decision, which denied service connection for hearing loss, is neither new nor material, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a), 20.1105 (1994). 6. The March 1988 BVA decision which denied service connection for hearing loss is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7103, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 20.1100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS All of the veteran's claims for service connection currently on appeal have previously been considered and denied. A November 1985 rating decision denied service connection for residuals of a back injury and hepatitis. The veteran was notified of that decision and of his appellate rights by a letter dated in December 1985. A February 1987 rating decision confirmed and continued the November 1985 rating decision. The veteran apparently expressed disagreement with the denial of service connection for residuals of a back injury and hepatitis because a statement of the case was issued in February 1987. At a personal hearing held in June 1987 the veteran dropped the issue of service connection for hepatitis and requested consideration of a claim for service connection for hearing loss. A rating decision dated in August 1987 denied service connection for hearing loss, and that issue was included as an issue on appeal to the BVA. A March 1988 BVA decision affirmed the RO's denial of service connection for residuals of a back injury and for defective hearing. The March 1988 BVA decision which denied service connection for residuals of a back injury and hearing loss, and the RO's November 1985 and February 1987 rating decisions which denied service connection for hepatitis, are final decisions. See 38 U.S.C.A. §§ 7103(a), 7104(a), 7105(c) (West 1991); 38 C.F.R. §§ 20.1100, 20.1103, 20.1004 (1994); Person v. Brown, 5 Vet.App. 449, 450 (1993). "[O]nce an RO or BVA decision becomes final under §§ 7104(b) or 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or readjudicated by the VA." Id. See also 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994); Suttman v. Brown, 5 Vet.App. 127, 135, (1993). When it is determined that new and material evidence has been submitted, the VA must reopen a previously denied claim. Spencer v. Brown, 4 Vet.App. 283, 286- 87 (1993). See also 38 U.S.C.A. § 7104(b) (West 1991). "Evidence is new when not 'merely cumulative of other evidence on the record,' and material when both 'relative to and probative of the issue at hand' and of sufficient weight to present a reasonable possibility that the new evidence, when viewed in conjunction with the old, will change the disposition of the claim. Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see also Manio v. Derwinski, 1 Vet.App. 140, 145 (1991)." Mintz v. Brown, 6 Vet.App. 277, 280 (1994). The Board would also note, prior to discussing each claim, that it has not been contended that the November 1985 and February 1987 rating decisions which denied service connection for hepatitis were clearly and unmistakably erroneous, 38 C.F.R. § 3.150(a) (1994), nor has any error of fact or law been alleged in the March 1988 BVA decision which could be construed as a Motion for Reconsideration of that decision. See 38 U.S.C.A. § 7103(b) (West 1991); 38 C.F.R. § 20.1000 (1994). As such, the only issue for the Board's consideration is whether new and material evidence has been presented which is sufficient to reopen the previously denied claims for service connection. I. Hepatitis The February 1987 rating decision which denied service connection for hepatitis did so on the basis that recent medical evidence did not identify any residuals of the hepatitis which the veteran clearly was treated for during service. In order for a veteran to be awarded service connection, there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury. See Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) The additional evidence associated with the claims file subsequent to the February 1987 rating decision also does not demonstrate the presence of any residuals of the hepatitis the veteran was shown to have been treated for during service. In fact, a VA examination performed in May 1992 specifically to determine whether there were residuals of hepatitis present concluded with an impression of "probable hepatitis with no clinical or laboratory evidence of residuals." Since the missing element of the veteran's claim was evidence which demonstrated the evidence of residuals of hepatitis the additional evidence cannot be considered new and material, or sufficient to reopen the veteran's previously denied claim. Accordingly, service connection for hepatitis remains denied. II. Back Disorder In affirming the RO's denial for service connection for residuals of a back injury the March 1988 BVA decision made three pertinent findings of fact: 2. Upon examination prior to entering active duty, he reported having recurrent back pain, for which he was not treated during active duty. There is no substantiation of a back injury during active duty and chronic complaints of lumbar strain are documented after an automobile accident sustained as a civilian. 3. During active duty for training, the veteran sustained an acute and transitory episode of lumbosacral strain subsequent to sports activity, and this resolved without residual chronic back disability. 4. Arthritis of the lumbosacral spine was initially documented many years after active service. Those findings of fact supported the BVA's conclusion of law that the veteran did not have residuals of a back injury which were the result of disease or injury incurred or aggravated by service, and that spinal arthritis may not be presumed to have been incurred during service. The additional evidence associated with the claims file consists of duplicate service medical records, service medical records dated subsequent to the March 1988 BVA decision, reports of VA examinations performed in May 1992, testimony presented at a personal hearing, and VA outpatient treatment records. However, the additional evidence, at most, demonstrates the current presence of a back disorder and does not in any way relate a current back disorder to service, or refute the findings and conclusions set forth in the March 1988 BVA decision. The veteran has continued to relate to treating physicians and in testimony presented at a hearing that he sustained a back injury during service, a back injury which by the veteran's testimony required treatment and light duty. But, as was noted at the time of the March 1988 BVA decision, the veteran's service medical records contain no evidence which substantiates the veteran's history of a prior injury during service. The veteran has also testified that he did not sustain an injury to his back following service in an automobile accident, transcript at 14, but contemporaneous medical records from B. L. Couch, M.D., clearly indicate that in June 1973 the veteran was treated for a probable back sprain secondary to an accident. Also, none of the additional evidence associated with the claims file subsequent to the March 1988 BVA decision refutes the finding that the injury the veteran sustained while performing active duty training resolved without residual disability, and significantly, none of the current evidence offers an opinion that any currently diagnosed back disorder is related to an injury the veteran sustained while performing active duty training. Lay opinions do not constitute competent evidence to address matters such as medical causation requiring expert opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992). Accordingly, the Board finds and concludes that the additional evidence is not new and material, and is insufficient to reopen the previously denied claim for service connection for residuals of a back disability. III. Bilateral Hearing Loss The March 1988 BVA decision which affirmed the RO's denial of service connection for defective hearing contained the following pertinent finding of fact: Bilateral high frequency defective hearing was initially documented on the veteran's entry examination report for active duty. The evidence does not show an increase in disability from preexisting bilateral defective hearing as a result of service. That finding of fact supported the Board's conclusion that bilateral high frequency defective hearing preexisted service and was not aggravated by service. None of the additional evidence associated with the claims file subsequent to the Board's March 1988 decision demonstrates that the veteran's preexisting hearing loss increased in severity during the veteran's period of active service, or demonstrates that the veteran sustained disease or injury to his ear while performing active duty training which would account for the hearing loss documented during the veteran's period of active duty training. Consequently, the Board finds and concludes that the additional evidence is not new and material, and the veteran's claim for service connection for bilateral hearing loss has not been reopened and remains denied. ORDER New and material evidence not having been submitted to reopen a claim for service connection for hepatitis, service connection for hepatitis is denied. New and material evidence not having been submitted to reopen a claim for service connection for residuals of a low back injury, service connection for residuals of a low back injury is denied. New and material evidence not having been submitted to reopen a claim for service connection for bilateral hearing loss, service connection for bilateral hearing loss is denied. CHARLES E. HOGEBOOM 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.