Citation Nr: 0004667 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-08 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to service connection for gouty arthritis. 2. Whether new and material evidence has been presented to reopen a claim for service connection for arthritis. 3. Whether new and material evidence has been presented to reopen a claim for service connection for heart disease. 4. Whether new and material evidence has been presented to reopen a claim for service connection for hypertension. REPRESENTATION Appellant represesnted by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his son. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had recognized guerrilla service from September 1, 1944, to November 17, 1945 and Regular Philippine Army service from November 18 to November 20, 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 1997 by the Department of Veterans Affairs (VA) Manila, Philippines, Regional Office (RO). A hearing was held at the RO in June 1999 before the undersigned Member of the Board. FINDINGS OF FACT 1. The veteran has not presented any competent evidence showing that his current gouty arthritis is related to service. 2. The RO denied the veteran's claim for service connection for arthritis in January 1987, and the veteran did not perfect an appeal. 3. The additional evidence presented since January 1987 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for arthritis. 4. The RO denied the veteran's claim for service connection for heart disease in January 1987, and the veteran did not perfect an appeal. 5. The additional evidence presented since January 1987 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for heart disease. 6. The RO denied the veteran's claim for service connection for hypertension in January 1987, and the veteran did not perfect an appeal. 7. The additional evidence presented since January 1987 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The claim for service connection for gouty arthritis is not well-grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The decision of January 1987 which denied service connection for arthritis is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The additional evidence presented since January 1987 is not new and material, and the claim for service connection for arthritis has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 4. The decision of January 1987 which denied service connection for heart disease is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 5. The additional evidence presented since January 1987 is not new and material, and the claim for service connection for heart disease has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 6. The decision of January 1987 which denied service connection for hypertension is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 7. The additional evidence presented since January 1987 is not new and material, and the claim for service connection for hypertension has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). If a chronic disorder such as arthritis or a cardiovascular disease is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). I. Entitlement To Service Connection For Gouty Arthritis. In reviewing any claim for VA benefits the initial question is whether the claim is well grounded. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded. See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). If not, the claim must be denied and there is no further duty to assist the veteran with the development of evidence pertaining to that claim. See 38 U.S.C.A. § 5107(a) (West 1991). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability, of incurrence or aggravation of a disease or injury in service, and a nexus between the in-service injury or disease and the current disability. 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 substantiate service incurrence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Competent medical evidence is also required to satisfy the medical etiology or medical diagnosis issues in secondary service connection claims. See Libertine v. Brown, 9 Vet. App. 521, 522 (1996). The nexus to service may also be satisfied by the presumptive period. Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). The report of a physical examination of the veteran on November 18, 1945, shows that there were no musculoskeletal defects. The veteran was described as being "fit". Similarly, an affidavit for Philippine Army personnel filled out by the veteran in November 1945 shows that in a section for listing a chronological record of wounds and illness incurred from December 8, 1941, to the date of return to military control, the veteran replied "none". In another affidavit for Philippine Army personnel executed by the veteran in February 1946, he again indicated that he had no wounds or illnesses incurred in service. Relatively recent post-service medical evidence which is of record includes a diagnosis of gouty arthritis, but does not contain any medical opinion which supports the contention that the veteran's gouty arthritis was related to service. A medical certificate from the V Luna General Hospital at Quezon City shows that the veteran was treated for gouty arthritis from August 1968 to August 1969. The certificate and other documents show that the veteran received a disability discharge in August 1969 from the Philippine Army. The veteran, who reported that he was discharged in 1968 from Philippine Army service, submitted a certification dated in July 1998 from the Philippine Veterans Affairs Office which indicates that he was service-connected for gouty arthritis. The Board notes, however, that the certification does not include any indication as to the basis for the award of disability benefits or that the gouty arthritis arose during the veteran's period of recognized service during World War II for VA purposes . Therefore, the certification document may not be relied upon to support for the veteran's claim for service connection for gouty arthritis. During the hearing held in June 1999, the veteran testified that he began feeling that he had arthritis sometime in 1945. Significantly, however, the veteran's own opinion that his current gouty arthritis is related to service is not enough to support the claim because lay persons are not qualified to offer opinions that require medical expertise, such as diagnoses or opinions as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). See also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (a veteran does not meet his burden of presenting evidence of a well- grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer medical opinions). A veteran is competent to testify as to the symptoms that he experienced, but he is not competent to render a medical opinion regarding the significance of those symptoms. See McIntosh v. Brown, 4 Vet. App. 553, 560 (1993). In summary, the veteran has not presented any competent evidence linking his current gouty arthritis to service. The veteran has not alleged that the disability arose under combat circumstances so as to satisfy the reduced evidentiary requirements under 38 U.S.C.A. § 1154 (b); in any event, this provision would only lessen the evidentiary burden for the service incurrence element of the claim and not the current disability and nexus requirements. See Kessel v. West, 13 Vet. App. 9, (1999). Accordingly, the Board concludes that the claim for service connection for is not well-grounded. Because the claim is not well-grounded, there is no further duty on the part of the VA to develop evidence with respect to the claim. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). II. Whether New And Material Evidence Has Been Presented To Reopen A Claim For Service Connection For Arthritis. The RO denied the veteran's claim for service connection for arthritis in January 1987, and the veteran did not perfect an appeal. Although the veteran made reference to a Form 1-9 or substantive appeal in a February 1987 letter to the RO, he said that he had submitted the form to his representative who would be responsible for its execution. The evidence which was considered at that time included the veteran's post service medical records from the Philippine Army, as previously summarized, and which were negative for references to disease or injury. In the decision of January 1987, the RO found, in essence, that the claimed arthritis had not been shown to be related to service. The veteran was notified of that decision and of his right to file an appeal, but he did not do so and the decision became final. In order to reopen a claim which was denied previously, a claimant must present new and material evidence. See 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" means evidence not previously submitted to the agency decision makers which bears directly and substantially on 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 claim. See 38 C.F.R. § 3.156 (1999). When determining whether new and material evidence has been presented to reopen a claim, the VA considers the evidence presented since the most recent decision in which the claim was denied on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). In the present case, the most recent decision which denied the veteran's claim on any basis was the January 1987 decision. The reopening standard calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. See Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998); Fossie v. West, 12 Vet. App. 1 (1998). If no new and material evidence is presented to reopen the claim, the prior denial remains final. See 38 U.S.C.A. § 7105 (West 1991). The additional evidence which has been presented includes current medical treatment records pertaining to arthritis. For example, a record from Elenwhite Caras-Luna, M.D., dated in December 1998 shows that the veteran had been treated for arthritis during November 1998. The record, however, does not contain any indication that the arthritis is related to the veteran's period of recognized service. The additional evidence which has been presented also includes testimony given by the veteran during a hearing held in June 1999. He stated that he believed that his arthritis started in 1945. The veteran may testify as to symptoms, but he is not qualified to offer opinions as to matters which require medical expertise, such as whether any particular symptoms were manifestations of arthritis or the date of onset of the disease. The Board finds that the additional evidence presented since January 1987 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for arthritis. Accordingly, the decision of January 1987 which denied service connection for arthritis remains final. Even if evidence that the veteran currently has arthritis was considered new and material to reopen the claim, the Board would have to determine whether, based upon all the evidence, the claim as reopened (and as distinguished from the original claim) is well grounded. What is still lacking for purposes of well grounding the claim is competent medical evidence linking the veteran's current arthritis to his period of recognized service. See Winters v. West, 12 Vet. App. 203, 207 (1999). III. Whether New And Material Evidence Has Been Presented To Reopen A Claim For Service Connection For Heart Disease. The RO denied the veteran's claim for service connection for heart disease in January 1987, and the veteran did not file an appeal. The evidence which was of record included the above references post-service records from the Philippine Army which did not include any mention of heart disease. The decision of January 1987 which denied service connection for heart disease is final. The additional evidence presented since January 1987 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for heart disease. The veteran testified in June 1999 that his cardiovascular disease started during his World War II service. However, the testimony has no probative value because the veteran is not qualified to offer a medical opinion. The additional evidence also includes current medical treatment records which reflect that the veteran has heart disease. The records do not, however, contain any medical opinion linking the heart disease to service and in the absence of such evidence the claim would not be well grounded even if it were reopened. The Board concludes, however, that the additional evidence presented since January 1987 is not new and material, and the claim for service connection for heart disease has not been reopened. IV. Whether New And Material Evidence Has Been Presented To Reopen A Claim For Service Connection For Hypertension. The RO also denied the veteran's claim for service connection for hypertension in January 1987, and he did not file an appeal with the RO. The only evidence at that time consisted of the records from the Philippine Army which did not contain any references to hypertension. The decision of January 1987 which denied service connection for hypertension is final. The evidence presented since January 1987 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for hypertension. The veteran testified in June 1999 that his hypertension started during his World War II service. However, the testimony has no probative value because the veteran is not qualified to offer a medical opinion. The additional evidence also includes current medical treatment records which reflect that the veteran currently has hypertension. The records do not, however, contain any medical opinion linking the hypertension to service. Accordingly, the Board concludes that the additional evidence presented since January 1987 is not new and material, and the claim for service connection for hypertension has not been reopened. The Board has noted the veteran's testimony to the effect that he did not realize until recently that his original claim for arthritis, heart disease and hypertension had been denied. In his March 1987 correspondence to the RO, however, he referred to the Statement of the Case which had recently been sent to him at his address of record informing him of the RO's adverse decision. Thus, from all appearances, the veteran had actual notice of the RO's actions. In any event, even if the claim had remained open, medical evidence such as a letter from a doctor linking hypertension and the other claimed disabilities to service would ultimately be needed to consider the claim on the merits. ORDER 1. Service connection for gouty arthritis is denied. 2. New and material evidence has not been presented to reopen a claim for service connection for arthritis. The appeal is denied 3. New and material evidence has not been presented to reopen a claim for service connection for heart disease. The appeal is denied. 4. New and material evidence has not been presented to reopen a claim for service connection for hypertension. The appeal is denied CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals