BVA9505416 DOCKET NO. 93-10 598 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Whether new and material evidence has been presented to reopen claims for service connection for pulmonary tuberculosis, a dislocated left shoulder and left nasal polyp. 2. Entitlement to service connection for dysentery, beriberi and arthritis. INTRODUCTION The appellant had recognized service from August 1941 to October 1942 and from May 1945 to June 1946. He was a prisoner of war (POW) from April 1942 to September 1942. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 1992 decision of the Manila, Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA) which found no new and material evidence to reopen the veteran's claims on all issues listed above. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he was healthy when he entered service and that when he left service he had a cough, chest and back pain, severe left shoulder pain and intestinal and abdominal disorders. He has had recurrences of his problems ever since service. 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 the preponderance of the evidence is against his claim for service connection for arthritis, that his claims for service connection for dysentery and beriberi are not well grounded and that new and material evidence has not been presented to reopen claims for service connection for pulmonary tuberculosis, left nasal polyp and left shoulder dislocation. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection for pulmonary tuberculosis was denied by the Board in May 1977. 3. Additional evidence submitted by the veteran consisting of a VA POW protocol examination in late 1986, a private medical statement with x-ray report dated in January 1990 and personal hearings in November 1990 and October 1992, is not material because it is not probative as to service incurrence of pulmonary tuberculosis. 4. Service connection for dislocated left shoulder was denied by an August 1960 RO rating decision to which a timely appeal was not submitted. 5. Additional evidence submitted by the veteran consisting of a statement from Samson V. Guerrero, M.D., dated in August 1967, statements from the Philippine Department of Health in 1975 and from the Veterans Memorial Hospital in 1976, a VA POW protocol examination in late 1986, a January 1990 private medical statement and personal hearings held in November 1990 and October 1992 is not material because it is not probative as to service incurrence of dislocated left shoulder or residuals thereof. 6. Service connection for left nasal polyp was denied by a January 1987 RO rating decision to which a timely appeal was not submitted. 7. Additional evidence submitted by the veteran consisting of a January 1990 private medical statement and personal hearings held in November 1990 and October 1992 is not material because it is not probative as to service incurrence of dislocated left shoulder or residuals thereof. 8. The evidence does not show that the veteran has or ever has had dysentery or beriberi, and the claims that such diseases were incurred in service or as a result of POW incarceration are not plausible. 9. Arthritis was not shown in service or within one year of service and traumatic arthritis is not demonstrated by any credible medical finding or opinion. CONCLUSIONS OF LAW 1. Evidence received since the May 1977 decision of the Board denying service connection for pulmonary tuberculosis is not both new and material and the veteran's claim is not reopened. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 3.303, 3.307, 3.309 (1994). 2. Evidence received since the August 1960 rating decision denying service connection for left dislocated shoulder is not both new and material and the veteran's claim is not reopened. 38 U.S.C.A. §§ 1110, 1131, 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 3.104, 3.303 (1994). 3. Evidence received since the January 1987 rating decision denying service connection for left nasal polyp is not both new and material and the veteran's claim is not reopened. 38 U.S.C.A. §§ 1110, 1131, 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 3.104, 3.303 (1994). 4. The claims for service connection for dysentery and beriberi are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 5. Arthritis was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. A well-grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United States Court of Veterans Appeals (Court) held that the appellant in that case had not presented a well-grounded claim as a matter of law. The Court pointed out that "unlike civil actions, the Department of Veterans Affairs (previously the Veterans' Administration) (VA) benefits system requires more than just an allegation; a claimant must submit supporting evidence." Tirpak at 611. If a well-grounded claim has not been presented, the appeal with respect to that issue must fail. In this case the veteran's claims except as to service connection for dysentery and beriberi are well grounded. However, the duty to assist imposed on the VA in a well grounded claim has been fulfilled in this case. There is no indication of, and the veteran has not alleged that there are any further records to obtain which would be relevant to a decision in this case. For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). There are some disabilities, including arthritis, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent within one year of separation from service. Pulmonary tuberculosis is also such a disease but for tuberculosis service connection may be presumed if the disease is shown to a degree of 10 percent within three years of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). For the showing of a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic". Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Pulmonary Tuberculosis Pursuant to 38 U.S.C.A. § 7104(b), a final decision by the Board on a given claim "may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered." The exception to this rule is 38 U.S.C.A. § 5108, which states 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." The United States Court of Veterans Appeals has held that the Board must perform a two-step analysis when a veteran seeks to reopen a claim based on new evidence. First, the Board must determine whether the additional evidence is "new" and "material." Second, if the Board determines that new and material evidence has been added to the record, the claim is reopened and the Board must evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means more than evidence which was not previously of record. To be "new", the additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). To be "material", the additional evidence must be probative of the issue at hand. Also, to be "material", there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome of the previous decision. Smith v. Derwinski, 1 Vet.App. 178 (1991). The Board denied service connection for pulmonary tuberculosis in May 1977. In August 1991 the claim was again denied by the Board on the basis that new and material evidence had not been presented to reopen the claim. Since the 1977 decision is the last final decision on the merits of the claim, the Board at this time will look back to the evidence submitted since that decision to determine whether the claim is reopened. Glynn v. Brown, 6 Vet.App. 523 (1994). At the time of its 1977 decision the Board considered the veteran's service medical records, including a May 1946 discharge examination with a report of x-ray study, a copy of a 1945 x-ray report, an August 1960 VA radiologist's report interpreting the 1945 x-ray film, a Philippine Department of Health statement concerning a series of x-ray studies taken from March 1964 to August 1975, a medical certificate from Veterans Memorial Hospital dated in May 1976 and statements from the veteran. The Board explained in the decision that the requirements for establishing the presence of pulmonary tuberculosis were not met prior to 1975, and the claim was denied. Evidence received since that decision includes a VA POW protocol examination in late 1986 which included a diagnosis of pneumonitis, a January 1990 private physician's statement, along with an x-ray report, noting that the veteran had been diagnosed with acute bronchial asthma, the veteran's personal hearings in November 1990 and October 1992 in which he essentially stated his belief that he had pulmonary tuberculosis as a result of being a POW and written statements from the veteran. The 1986 and 1990 medical evidence does not refer to any present pulmonary tuberculosis not does it relate any such disease to the veteran's military service including his time as a POW. This evidence is not probative of the matter of whether pulmonary tuberculosis was present in service, was manifested to a degree of 10 percent within three years of service or is in any way related to service, including POW internment. The veteran's hearing testimony is general in nature and his testimony and statements are essentially cumulative to those made prior to the denial of the claim in 1977. They are not new. In summary, the veteran simply has not submitted any new evidence which would tend to show the onset, directly or presumptively, of pulmonary tuberculosis in service or would tend to attribute his pulmonary tuberculosis to his service including POW internment. His testimony is incompetent to provide such diagnosis or relationship to service. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Dislocated Left Shoulder Under 38 U.S.C.A. §§ 5108, 7105 and 38 C.F.R. §§ 3.104(a), after a claim has been denied by a rating decision that was unappealed or from which an appeal was not perfected, it may be reopened only upon submission of "new and material" evidence, as defined above. When the RO denied service connection for dislocated left shoulder in August 1960, it had before it the veteran's service medical records and affadavits for Philippine Army personnel which were devoid of any indication of left shoulder dislocation The evidence received since that decision, including an August 1967 statement from Samson V. Guerrero, M.D., medical reports of 1975 and 1976 described above, a VA POW protocol examination in late 1986 and a January 1990 private medical statement, makes no reference to dislocated shoulder, and it is not probative or material. The veteran's statement and testimony have also provided no further information concerning any material fact. This claim is not reopened. Left Nasal Polyp The RO denied service connection for left nasal polyp in a January 1987 rating decision. At that time the evidence considered, which has been listed above, showed a diagnosis of left nasal polyp on the POW protocol examination, some 40 years after service. There was no previous reference to nasal polyp in the medical record. The evidence received since that time, the January 1990 private medical statement makes no reference to a nasal polyp, and the veteran's statements provide no further information than that previously considered by the RO. New and material evidence to reopen the claim is not presented. Dysentery and Beriberi With regard to these claims, the Board notes that they were denied by the unappealed January 1987 rating decision. However, the Court has held that new and material evidence is not required to reopen a claim of a former POW for diseases entitled to POW presumptive service connection. Yabut v. Brown, 6 Vet.App. 79, 82 (1993). Therefore, there is no question here as to whether or not the claim is reopened. However, in Yabut it was held that the former POW was required to submit a well-grounded claim, and in this case, the veteran has not met this threshold burden. Chronic dysentery and beriberi are presumed service connected for former POW's under 38 U.S.C.A. § 1112 when manifest to a degree of 10 percent or more at any time after discharge or release from active service. 38 C.F.R. §§ 3.307, 3.309. In this case, service medical records reveal that he was hospitalized in September and October 1942 with admission complaints of recurrent chills and fever, lumbar pain and cough since May. He was diagnosed as having malaria, beriberi and anemia. During hospitalization dysentery cultures were negative as were cultures for parasites. He was discharged from the hospital as recovered. Affadavits for Philippine Army personnel completed in May 1945 and February 1946 refer only to a chest sprain in the spaces provided for a chronological list of wounds and illnesses incurred. The May 1946 service separation examination examination shows no history, complaints, findings or diagnoses suggestive of dysentery or beriberi. In an August 1967 affidavit, Dr. Guerrero reported that while assigned to a medical ward in a concentration camp, he came upon the veteran who was suffering from malaria, back pain and acute dysentery. Private medical reports of 1975 and 1976 made no reference to dysentery or beriberi. On a VA POW protocol examination in late 1986, the diagnoses after physical and diagnostic studies included no residuals of beriberi or dysentery. The veteran had no specific testimony concerning these diseases during his personal hearings. Although Dr. Guerrero reported treating the veteran for dysentery while interned as a POW, there was no evidence of dysentery on hospitalization in September and November 1942 or on any other postservice medical report. Residuals of dysentery were specifically not found on the 1986 POW protocol examination. Chronic dysentery is a disease which is accorded the benefit of the POW presumptive provisions, but chronic dysentery has not been shown by any credible evidence at any time after service. Consequently, the claim for service connection for dysentery is not well grounded. See Yabut. Beriberi was diagnosed during hospitalization in September and October 1942. However, beriberi has not been shown on any postservice medical report, and, again, residuals of beriberi were specifically not found on the 1986 VA POW protocol examination. Because there is no evidence of manifestations of beriberi to a degree of 10 percent currently or at any time after service discharge, the veteran's claim is not well grounded. Arthritis The veteran's service medical records are devoid of any indications of arthritis, and there were no musculoskeletal defects found on the separation examination in May 1946. There was no reference to arthritis in the 1975 and 1976 medical reports, and arthritis was first shown on the POW protocol examination more than 40 years after service discharge. Because arthritis was not shown in service or manifested to a degree of 10 percent within one year of service and because there is no credible medical evidence relating his current arthritis to service, the claim must be denied. Post-traumatic arthritis is presumed service connected for former POW's under 38 U.S.C.A. § 1112 when manifested to a degree of 10 percent or more at any time after discharge or release from service. In his initial application for VA benefits in 1960, the veteran referred to left shoulder injury due to blows inflicted by the enemy, and on his 1986 POW protocol examination he noted beatings to his head and back without specifying which area of his back. The arthritis found in 1986 was in his knees and lumbar spine; certainly, that in his knees does not correspond to the areas in which he alleged trauma as a POW, and his designation of beatings in the head and shoulder area would indicate the upper back area, rather than the lumbar spine. In any event, the arthritis found in 1986 was shown as hypertrophic degenerative arthritis, and there is no medical opinion indicating post-traumatic arthritis or otherwise relating his arthritis to an incident of his POW internment. Because post- traumatic arthritis to a degree of 10 percent has not been shown at any time after service, there can be no grant of the benefit sought under the regulations pertaining to POW diseases. The veteran's assertions that his arthritis is related to service are not credible medical evidence. Espiritu; Grottveit v. Brown, 5 Vet.App. 91 (1993). The preponderance of the evidence is against his claim, and there is no doubt to be resolved. ORDER The claims for service connection for pulmonary tuberculosis, dislocated left shoulder and left nasal polyp are not reopened, and the benefits sought are denied. The claims for service connection for dysentery and beriberi are dismissed. The claim for service connection for arthritis is denied. HOLLY E. MOEHLMANN 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.