BVA9505690 DOCKET NO. 93-13 341 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for rheumatoid arthritis and pneumonia. 2. Entitlement to service connection for residuals of burns, left arm. 3. Entitlement to an increased (compensable) evaluation for hemorrhoids. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from July 1944 to March 1946. Nonservice-connected pension benefits have been in effect since 1963. The Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, denied entitlement to service connection for rheumatoid arthritis and pneumonia in July 1963. The veteran was informed of the decision and did not file a timely appeal. This appeal is taken from the rating action by the RO in April 1993. CONTENTIONS OF APPELLANT ON APPEAL In substance, the veteran argues that he developed rheumatoid arthritis and pneumonia in service and that he burned his left arm in service, requiring 4 months of treatment; no specific arguments have been offered relating to his hemorrhoids other than he has been treated by the VA for various problems. He requests that other attempts should be made to locate his service medical records. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant 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 the veteran's claim for service connection for pneumonia and rheumatoid arthritis; that the veteran's claim for service connection for residuals of burns, left arm, is not well grounded; and that an increased (compensable) evaluation for hemorrhoids is not warranted. FINDINGS OF FACT 1. Evidence sufficient for an equitable disposition of the appellate issues has been obtained by the RO. 2. The RO, in a decision in 1963, denied service connection for rheumatoid arthritis and pneumonia. 3. Evidence submitted since 1963 relating to the issues of service connection for rheumatoid arthritis and pneumonia is not new or material as it does not raise a probability of changing the outcome when viewed in the context of the entire evidence. 4. There is no evidence or medical opinion that the veteran has residuals of a burn of the left arm as a result of service. 5. The veteran's hemorrhoids are no more than mild. 6. The veteran has not presented evidence tending to show that his hemorrhoids produce an unusual disability picture, cause marked interference with employment or require frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The decision by the RO in 1963 denying service connection for rheumatoid arthritis and pneumonia is final; evidence submitted since the 1963 decision on those issues is not new and material and the veteran's claim in that regard is not reopened. 38 U.S.C.A. §§ 5107(a), 5108 (West 1991); 38 C.F.R. §§ 3.154 (1994). 2. The veteran's claim for service connection for residuals, burns of the left arm, is not well grounded. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 1991). 3. The criteria for an increased (compensable) evaluation for hemorrhoids are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7, Diagnostic Code 7336 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the facts relevant to the issues on appeal have been properly and adequately developed and that the statutory obligation of the VA to assist the veteran in the development of his claim in that regard has been satisfied pursuant to 38 U.S.C.A. § 5107. The Board is also satisfied that all available service records are in the file. Service Connection: Rheumatoid Arthritis and Pneumonia In 1963, the RO denied entitlement to service connection for rheumatoid arthritis and pneumonia. The veteran was properly notified of that determination, and did not file a timely appeal. That decision became final. To reopen a claim following a final decision, the veteran must submit new and material evidence. 38 U.S.C.A. § 5108. When a veteran seeks to reopen his or her claim under [38 U.S.C.A.] § 5108, the Board must first conduct a two-step analysis. First, the Board must determine whether the evidence submitted since the previous Board decision is "new and material." Second, if the evidence is found to be new and material, the claim is to be reopened and the Board must then "assess the new and material evidence in the context of other evidence of record and make new factual determinations." Masors v. Derwinski, 2 Vet.App. 181, 185 (1992) (quoting Goodwin v. Derwinski, 1 Vet.App. 419, 425 (1991), and Jones v. Derwinski, 1 Vet.App. 210, 215 (1991)). New and material evidence means evidence not previously submitted which bears directly and substantially upon a specific matter under consideration, which is neither cumulative nor redundant and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). In general, the United States Court of Veterans Appeals has stated that the evidence must be relevant and probative of the issue at hand. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance (assuming its credibility) that there is a reasonable probability that the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95 (1993). In undertaking the mandated two-step process, the Board must compare the evidence considered in the July 1963 decision with the evidence submitted since that action. The evidence considered at the time of the 1963 RO determination included service and post-service clinical records, as well as a December 1991 statement from the Surgeon General's Office (SGO). The veteran's service medical records showed no complaints or evidence of pneumonia including on the separation examination in March 1946. There was no inservice complaint or evidence of rheumatoid arthritis. On the veteran's separation examination , he gave a history of having injured his back in a fall from a ladder. On examination, X-rays showed no back disorder, and the examiner noted neither complaints nor clinical findings of rheumatoid or any other arthritis. The SGO records likewise do not reflect signs of or treatment for pneumonia or rheumatoid arthritis. The veteran has submitted no evidence including any medical opinion to suggest that pneumonia or any residuals thereof are of service origin. Also of record at the time of the 1963 decision were two VA hospital admission reports from 1962 showing treatment for rheumatoid arthritis, and a report of VA hospitalization in 1963 for rheumatoid arthritis of various joints. There was no evidence of post-service pneumonia or residuals thereof. Since 1963, there has been submitted no evidence relating to pneumonia. The evidence relating to arthritis includes reports of ongoing care and evaluations including a VA hospital report from March and April 1965, a VA examination report from March 1966, and a VA outpatient report from 1991, all without medical evidence or opinion linking any rheumatoid arthritis to service. Also of record is a statement from a friend of the veteran's, H. L., submitted in 1991, recalling that he had accompanied him to see a physician for his arthritis in March 1946. Concerning his back problems, the veteran argues that his orthopedic problems, diagnosed as rheumatoid arthritis since service are all attributable to service. However, the veteran is not medically trained and is not qualified to provide such an opinion, and there is no objective medical opinion to support this assertion. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Regarding the claimed pneumonia, on a VA outpatient report in 1991, it was noted that the veteran's lungs and chest were clear. The examiner reported that the veteran had been found to have a calcified granuloma on the left upper lobe in 1984. However, the veteran has submitted no evidence including any medical opinion to suggest that pneumonia or any residuals thereof is of service origin. The Board finds that the evidence since 1963 is neither new or material in that it does not potentially have a significant impact on the ultimate determination. The veteran's claim for service connection for pneumonia and rheumatoid arthritis is not reopened. Service Connection: Burns, left Arm In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A(n appellant) claiming entitlement to VA benefits 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, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (l992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). The veteran's service records and the SGO report show no evidence of burns of the left arm, including at the time of his separation examination in March 1946 when he had no history of, complaints nor clinical findings of residuals of left arm burns. The skin was described as normal. VA examinations since service and a 1991 VA outpatient report showed no evidence of left arm burns. The veteran has submitted no evidence including any medical opinion to suggest that left arm burns or any residuals thereof are of service origin. In Rabideau v. Brown, 2 Vet.App. 141 (1992), the Court held that in the absence of evidence of a current disability which could be attributable to service, the veteran had not submitted evidence "probative of the issue at hand". For the reasons noted above, the claim is not well- grounded. Increased Evaluation: Hemorrhoids In questions relating to claimed entitlement to increased compensation benefits, the Court has found that, within the confines of certain parameters, the allegation by a veteran that he has increased disability tends to establish a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Although the veteran has not undergone a recent VA examination with regard to his service-connected disability, based on the overall evidence of record, including recent VA outpatient treatment records, the Board is satisfied that adequate evidence is of record to reach an equitable disposition of the issue relating to an increased evaluation. In general, disability evaluations are determined by the application of a schedule of earnings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). The Board has also considered all of the facets of the disorder pursuant to Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In this case, since there are specific provisions for hemorrhoids, alternative regulatory provisions are inapplicable. The VA Schedule for Rating Disabilities provides for a zero percent evaluation when mild or moderate; a 10 percent rating is assignable when large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assignable with persistent bleeding and with secondary anemia, or with fissures. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Diagnostic Code 7336. The veteran's service medical records, (including recently obtained Office of the Surgeon General records which are entirely consistent with the other records in the file), show that he complained of chronic hemorrhoids. Examinations showed tenderness and external and internal hemorrhoids were found, mild to moderate in degree, for which he underwent a hemorrhoidectomy. Except for one clinical notation that he had a small hemorrhoid in the early 1960's, no significant post-service hemorrhoid complaints or findings have been identified in clinical evidence of record.. On a VA outpatient visit in November 1991, the veteran reported a history of numerous problems including hemorrhoids for which he said he had undergone a hemorrhoidectomy. There was no clinical evidence of hemorrhoids. Absent any clinical evidence of more than mild or moderate hemorrhoids, at most, the Board finds that a compensable rating is not assignable. The veteran's symptoms do not more nearly approximate the criteria for the next higher evaluation assignable when hemorrhoids are large or thrombotic, etc.. Furthermore, the veteran has not provided evidence which tends to show that his hemorrhoidal disability is unusual with such related factors as causing marked interference with work or requiring frequent hospitalization. The criteria for an evaluation in excess of zero percent for hemorrhoids are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, Diagnostic Code 7336. ORDER New and material evidence not having been submitted to reopen the veteran's claim for service connection for rheumatoid arthritis and pneumonia, the appeal in that regard is denied. The claim for service connection for residuals of burns, left arm is not well grounded; the case, in that regard, is dismissed. An increased (compensable) evaluation for hemorrhoids is denied. RENÉE M. PELLETIER 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.