Citation Nr: 0000373 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-07 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to service connection for residuals of a combat wound of the left forehead. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a combat wound of the right knee. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. M. Panarella, Associate Counsel INTRODUCTION The veteran had recognized guerrilla service from September 1942 to May 1945. He also served as a Philippine Scout from April 1946 to February 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the June 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Manila, Philippines (RO). At a hearing at the RO in June 1999, the veteran submitted copies of various documents for initial consideration by the Board. To the extent the documents were not previously of record, they do not appear to bear directly on the current appeal and are referred to the RO for any appropriate action. FINDINGS OF FACT 1. There is no competent medical evidence linking any claimed residuals of a combat wound of the left forehead with the veteran's period of recognized service. 2. By unappealed decision dated July 1972, the RO denied the veteran's claim of entitlement to service connection for residuals of a combat wound of the right knee. 3. The evidence associated with the claims file subsequent to the July 1972 decision is cumulative or redundant and is not so significant that it must be considered to decide fairly the merits of the claim. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for residuals of a combat wound of the left forehead is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The RO's July 1972 decision denying entitlement to service connection for residuals of a combat wound of the right knee is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). 3. The evidence received since the July 1972 rating decision is not new and material, and the requirements to reopen the veteran's claim of entitlement to service connection for residuals of a combat wound of the right knee have not been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claim-Forehead Wound A veteran is entitled to service connection for a disability resulting from disease or injury incurred in or aggravated in the line of duty while in the active military, naval, or air service. See 38 U.S.C.A. §1110 (West 1991); 38 C.F.R. § 3.303 (1999). Further, in establishing service connection for combat veterans, notwithstanding the absence of a record of an in-service injury, lay or other evidence may be acceptable as sufficient proof of service connection of a disease or injury if such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154(b) (West 1991). A veteran, however, must show that his claim for service connection is well grounded. A well-grounded claim is one that is plausible, capable of substantiation, or meritorious on its own. See 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well-grounded claim there is no duty to assist the veteran in developing the facts pertinent to his claim and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). To establish that a claim for service connection is well grounded, the veteran must demonstrate the existence of a current disability, the incurrence or aggravation of a disease or injury in service, and a nexus between the current disability and the in-service injury. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to prove service incurrence. See Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that that same condition currently exists. This evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). The veteran has alleged that he was injured in February 1944 during combat with the Japanese when shrapnel from a grenade hit his left forehead. The veteran's service medical records include a separation examination of May 1945, an enlistment examination of March 1946, and a separation examination of January 1949. None of these examinations identified any physical abnormalities, defects, or wounds. Affidavits for Philippine Army Personnel sworn to by the veteran in May 1945 and January 1946 stated that he had incurred no wounds or illnesses during service. The veteran's Honorable Discharge dated January 1949 also documented the absence of any wounds received in combat. In September 1995, two former comrades of the veteran stated that they had served with him as Panay Guerrilla members and that they were aware that he had been injured by shrapnel. The veteran appeared at a hearing before the undersigned Board Member in June 1999 and testified that his left forehead was injured by a hand grenade in February 1942. He said that the injury was healed. The Board does not find any competent medical evidence of current residuals of the claimed combat wound of the veteran's left forehead which could be linked to the injury he described in service. To the contrary, the veteran has stated that the injury has healed and he has offered no testimony concerning any present impairment due to the claimed injury. As the record is devoid of any medical evidence of a current diagnosis or findings related to the veteran's claimed forehead wound, the Board must conclude that the veteran's claim is not well grounded and the benefit sought on appeal must be denied. Further, the Board finds that 38 U.S.C.A. § 1154(b) does not support the veteran's claim. The section specifically allows combat veterans, in certain circumstances, to use lay evidence to establish the service incurrence or a disease or injury, by relaxing the evidentiary requirements for adjudication of certain combat-related disability claims. See Caluza v. Brown, 7 Vet. App. 498, 507 (1995), aff'd, 78 F.3d 604 (Fed.Cir. 1996)(table). The provisions of 1154(b), however, do not provide a substitute for medical evidence of a current disability and medical-nexus evidence. See Wade v. West, 11 Vet. App. 302, 305 (1998). Therefore, even were the Board to assume without deciding that the veteran's account of his in-service injury was credible despite the lack of documentation in the service medical records, the veteran has not submitted medical evidence of current disability or medical nexus evidence and the claim must still be denied as not well grounded. II. New and Material Claim-Right Knee Wound The RO has developed the issue on appeal as entitlement to service connection for residuals of a combat wound of the right knee. However, the Board finds that the veteran's claim of entitlement to service connection for residuals of a combat wound of the right knee was previously considered and denied by the RO. Initially, a March 1953 rating decision denied service connection for a right leg injury. The Board confirmed this denial in a July 1955 decision, finding that the veteran's claimed bayonet wound of the right knee was not supported by the evidence of record. Most recently, in July 1972, the RO again denied service connection for the right leg injury, finding that newly submitted evidence did not establish that the injury occurred during active service. The veteran was notified of that decision and provided with his appellate rights that same month, but he did not appeal the decision. The law provides that a notice of disagreement (NOD) must be filed within one year from the date of mailing of notice of the RO's determination in order to initiate an appeal of the decision. 38 U.S.C.A. § 7105(a), (b)(1) (West 1991). If no NOD is filed within the prescribed period, the determination becomes final. 38 U.S.C.A. § 7105(c) (West 1991). Since the veteran in this case did not file an NOD to the RO's July 1972 determination, that determination is final. Id; 38 C.F.R. §§ 20.302, 20.1103 (1999). Once an RO decision becomes final under 38 U.S.C.A. § 7105(a), (West 1991) absent the submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by the VA. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999); Suttmann v. Brown, 5 Vet.App. 127, 135 (1993). The Board must therefore consider whether new and material evidence has been submitted to reopen the previously and finally denied claim. The Board must address the issue of new and material evidence in the first instance before it has jurisdiction to reach the underlying claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Barnett. at 1384. In proceeding with an analysis limited to the issue of new and material evidence, the Board finds that the veteran has not been prejudiced because the RO has simply accorded him a broader review upon the merits. See Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in conjunction with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156 (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). This standard represents a liberalization of the definition of material evidence and permits a finding of materiality even where the evidence would not establish a well-grounded claim. See Elkins v. West, 12 Vet.App. 209 (1999); Winters v. West, 12 Vet.App. 203 (1999). The relevant evidence that was of record at the time of the RO's July 1972 denial included the veteran's service medical and personnel records; July 1953, February 1954, May 1955, and January 1972 affidavits from former comrades of the veteran; and a February 1954 affidavit from the veteran. As aforementioned, the veteran's service medical and personnel records, including all available separation and enlistment examinations, are negative for any findings of physical abnormalities, defects, or wounds. Affidavits dated July 1953 from David R. Sardoma and Eufronio Seledio state that they served in the same platoon as the veteran and that, in February 1944, the platoon engaged in combat with the Japanese. At that time, they discovered the veteran with a deep wound above the right knee, which the veteran claimed was due to a Japanese saber. The veteran received no military medical care, as none was available. In an affidavit submitted in February 1954, the veteran explained that he did not report his wound in his prior affidavits because of language difficulties with the processing officers and because of the cursory nature of the proceedings. A May 1955 affidavit submitted by Rodrigo Lebuna stated that he treated the veteran with local plants and roots for three weeks after he was stabbed by the Japanese in February 1944. A January 1972 affidavit of Dr. Conrado D. Salcedo stated that he was a company surgeon with the Panay Guerrilla and that the veteran was hospitalized in March 1944 with injuries to the right knee caused by a sharp instrument. He stayed in the hospital for one month with the wound healed. The additional pertinent evidence that has been associated with the veteran's claims file since the RO's July 1972 denial consists of September 1995 and July 1996 statements of the veteran; a September 1995 statement from former comrades; and the veteran's testimony in June 1999 before the undersigned member of the Board. In statements submitted in September 1995 and July 1996, the veteran said that he was injured in February 1944 when his right knee was hit by a Japanese saber or bayonet. He pretended to have no injury at the time of separation from service in order to ensure his discharge. His wound was now healed. In a September 1995 statement, Federico Chiva and Flavio Lelis said that they had served with the veteran as members of the Panay Guerrilla and that they were aware of the injury caused by the saber. The service department confirmed that Flavio Lelis had recognized guerrilla service but that Federico Chiva's name did not appear on any reconstructed guerrilla roster. (The veteran has noted that Mr. Chiva receives an "Old Age "pension.) The veteran testified in June 1999 that his right knee was stabbed by a Japanese soldier in February "1942" and he could not walk for approximately 6 weeks thereafter. He had not seen a doctor recently because the injury was healed. In considering the recently submitted evidence in conjunction with the previous evidence, the Board concludes that it is cumulative and redundant, and that it need not be considered in order to fairly decide the merits of the claim. The testimony of the veteran and the statements of his comrades are essentially cumulative of evidence of record prior to the RO's last final denial. That is to say, the evidence merely recounts with minor variation the veteran's previous claim that he incurred a puncture or stab wound about the right knee at the hands of the enemy. In particular, the veteran has presented no medical evidence of any current residuals of a combat wound of the right knee and has presented no competent evidence of a medical nexus or relationship between his claimed disability and the incident he and other have described in service. The veteran himself has testified that the claimed wound was now healed. The record is devoid of any current medical substantiation of residuals of a combat injury to the right knee. Even if the Board were to accept the veteran's allegations of being stabbed in combat as true pursuant to 38 U.S.C.A. § 1154(b) (West 1991), the evidence does not establish a current left knee disability or a nexus between any such disability and an in-service wound, both of which generally require competent medical evidence. See Cohen (Douglas) v. Brown, 10 Vet. App. 128, 138 (1997). Consequently, even if the case were to be reopened on the basis of a more complete picture of what happened in service, the claim would still not be well grounded. Accordingly, the benefit sought on appeal must be denied. The Board notes the veteran's contention that he should be examined for scars by VA, but VA has no duty to conduct such an examination unless the veteran's claim is well grounded, the requirements of which have been discussed in this decision. The Board has also noted the veteran's contention that it was impossible for him to secure medical evidence of his wounds and that medical services during guerrilla activities were practically non-existent. Although the veteran has previously submitted evidence of both herbal treatment and hospitalization for several weeks following the claimed injury-what happened in service, of significance to the claim would be medical evidence of current disability linked to service. ORDER Evidence of a well-grounded claim not having been submitted, service connection for residuals of a combat wound of the left forehead is denied. As new and material evidence has not been submitted to reopen the claim of entitlement to service connection for residuals of a combat wound of the right knee, the appeal is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals