BVA9500339 DOCKET NO. 91-47 356 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to an increased (compensable) evaluation for the residuals of a fractured right third metatarsal. 3. Whether new and material evidence has been submitted to reopen claims for service connection for chronic obstructive pulmonary disease (COPD) and a right leg disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD M. O. Potter, Jr., Associate Counsel INTRODUCTION The veteran served on active duty from May 1959 to June 1961. This appeal comes to the Board of Veterans' Appeals (Board) from a February 1991 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The RO denied the veteran's claims for service connection for a back disability and for a compensable evaluation for service-connected residuals of fractured right third metatarsal. The RO also denied the veteran's application to reopen his previously denied claims for service connection for a right leg disability and COPD. This case was before the Board in April 1992 when it was remanded for further development. That development has been completed as far as possible by the RO. The case was returned to the Board in October 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he currently has a low back disability that started in service or was caused by his service-connected residuals of a fractured right third metatarsal. It is asserted that the residuals of his fractured right third metatarsal are of such severity that a compensable evaluation is warranted. The veteran also argues that the evidence submitted since the RO's previous denials of claims for service connection for COPD and a right leg disability is new and material and warrants the reopening of those claims and granting service connection. 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 the claim for service connection for a low back disability and against the claim for an increased rating for service-connected residuals of a fractured right third metatarsal. It is also the decision of the Board that no new and material evidence has been submitted to reopen claims for service connection for COPD and a right leg disability. FINDINGS OF FACT 1. A chronic low back disability was not present in service or for many years later, and was not caused by an incident of service or by service-connected residuals of a fractured right third metatarsal. 2. The veteran's residuals of a fractured right third metatarsal are asymptomatic. 3. In 1985 the RO denied the veteran's claims for service connection for a right leg disability and for COPD, and the determination was not timely appealed. 4. The veteran applied to reopen his claim for service connection for a right leg disability and COPD in 1990. 5. The evidence submitted since the 1985 RO denial of the veteran's claims for service connection for a right leg disability and for COPD is cumulative and redundant, or not relevant or probative and when viewed in context of all of the evidence of record does not raise a reasonable possibility of a change in the prior adverse outcome. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service and is not proximately due to or the result of service- connected residuals of a fractured right third metatarsal. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1993). 2. The criteria for a compensable evaluation for the residuals of a fractured right third metatarsal have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.31, 4.71a, Code 5284. 3. The additional evidence received since the 1985 RO decision that denied service connection for COPD and a right leg disability is not new and material; the claims are not reopened; and the 1985 decision remains final. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's service medical records show that in April 1960 he fractured the third metatarsal of his right foot when he jumped from a truck. He was hospitalized for several days, until May 1960, and the foot was casted. The final diagnosis was simple undisplaced fracture of the right third metatarsal without artery or nerve involvement. After a period of limited duty, he was returned to full duty. The veteran's service medical records contain no reference to a back, right leg (other than the right foot fracture), or lung disorder. He underwent a physical examination in May 1961 in connection with his discharge from service. At that time he denied a history of relevant medical problems. Clinical evaluations of the lungs, feet, lower extremities and spine were normal. In June 1961, when discharged from service, he signed a certificate that was to the effect there had been no change in his physical condition since his last physical examination. In February 1984, Cliff Moore, Jr., M.D., reported the veteran had been under his care for the last few years. The doctor reported the veteran had not been able to return to work due to COPD. He also reported he had rendered medical treatment to the veteran for fibrositis, myositis, allergic rhinitis and sinusitis. In September 1984, Dr. Moore examined the veteran and reported he had occasional breathing congestion. The veteran also complained of his right leg still hurting from a fracture in service. The diagnoses included leg hurting and obstructive lung problems. In October 1984, the veteran filed a claim for compensation for various disabilities including breathing problems and a right leg disability. The veteran underwent a VA examination in December 1984. He reported that he had injured his right leg while on active duty and broke some bones in the right foot. He stated that "the right leg is crooked." He complained that his right foot hurt. He reported that he had a "breathing problem" ever since he came out of service, which was progressively getting worse. On examination, the lungs were normal on clinical evaluation and X-ray study. On clinical examination there was no deformity of the right foot, and findings with regard to the right leg and back were normal. X-rays of the right foot and right knee were normal. The diagnoses included right leg pathology not found. The examiner noted that, throughout the examination, the veteran was constantly sniffing and had to breathe through his mouth, indicating nasal congestion, and this was attributed to allergic rhinitis. By rating action in February 1985, the RO granted the veteran service connection for residuals of a fractured right third metatarsal and assigned a zero percent evaluation. RO decisions in February and May 1985 denied service connection for the right leg and lung disorders; the veteran was informed of these determinations, but did not appeal. In August 1990, Dr. Moore reported the veteran had been under his care since September 1982, and prior to then he was treated by other doctors who were now deceased. He reported rendering medical treatment to the veteran for various disabilities including COPD, myositis and fibrositis of the back. Dr. Moore stated that most of the veteran's problems started when he was in service. Later that month Dr. Moore submitted a certificate reporting that the veteran was receiving monthly treatment for fibrositis of the back, allergic rhinitis and sinusitis, myositis and COPD. In September 1990, Thomas H. Kerr, R. Ph., reported that he had been the veteran's pharmacist since the early 1960's. He reported that since then the veteran had taken medication for various disabilities including chronic lung disease, fibrositis of the back, chronic sinus problems, and chronic foot and leg pain. Mr. Kerr stated the veteran's impairments had grown progressively worse in the past several years. In September 1990, Dr. Moore reported the veteran's nerves, and chronic pain of the right leg and back, had progressively worsened over the past several years. He said that he had rendered medical treatment to the veteran for his nerves and right leg between September 1982 and August 1990. He also reported he had treated the veteran on other occasions for COPD, fibrositis of the back, allergic rhinitis and sinusitis, and other problems. A September 1990 written statement from [redacted] is to the effect that he had served with the veteran while both were on active duty and had noticed the veteran had a very noticeable limp. He recalled being told by the veteran that his foot had been broken which required hospitalization during service. In October 1990, [redacted] reported that he had been the veteran's manager at Days Inn where the veteran had worked between March 1989 and April 1990. He reported the veteran's leg and foot were a constant problem, and he missed work due to that problem and a breathing problem. The veteran underwent a VA examination in December 1990. He reported having problems with an old fractured metatarsal of the right foot. He stated that some days it hurt and some days it did not. He recalled that his right leg began to pain in the last year along with some breathing problems. He reported being told by physicians that pain in his right leg was caused by his right foot. He gave no history of a back disability. On examination the veteran was able to stand upright and balance on either foot. He could also briefly stand alone on either foot. He was able to squat. He had normal inversion and eversion of the right foot. He was able to rise on his toes and heels. There was no swelling, tenderness, muscle spasm, calluses or any adverse circulatory disorder. There was no bony deformity. There appeared to be a slight depression of the longitudinal arch. On examination of the right leg, there was no swelling, localized heat, tenderness, circulatory condition, ulceration or sinus formation, spasticity of muscles or bony deformity. He was able to dress and undress and get off an examining table. He was able to walk with no limp. His gait was normal. An examination of the lumbosacral back was normal. X-ray films of the right foot showed no evidence of acute fracture or dislocation, and X-rays of the right tibia and fibula were normal. The diagnoses were residuals of a fracture of the third metatarsal of the right foot not found; right leg condition not found; and back condition not found. In March 1991, Dr. Moore reported the veteran had a history of COPD that started in service. The veteran also reported having right leg pain since being injured in service. The doctor said that most of the veteran's disabilities started in service and had gotten worse in the past few years. Mel J. Colon, D.P.M., examined the veteran in July 1991. At that time, the veteran complained of continuous aching pain from the dorsal aspect of the right foot radiating up to the anterior aspect of the foot. He reported fracturing his right foot while on active duty in 1960 and having a problem since then. Dr. Colon's diagnoses were possible old fracture of the dorsal aspect of the right foot and possible nerve entrapment of the right ankle. These records show that Dr. Colon referred the veteran to Dr. Adrienne Chiles for consultation. It was noted that the veteran's orthopedic evaluation showed bilateral hallux limitus, posture pain on palpation at the base of the 3rd and 4th metatarsals of the right foot dorsally and pain at the first interspace of the right foot, no pain on range of motion at the ankle bilaterally, and no muscle weakness noted bilaterally. The assessment was reported to be hallux limitus with degenerative joint disease at the first metatarsophalangeal joint, bilaterally. In August 1991, a Social Security Administration (SSA) Administrative Law Judge (ALJ) held that the veteran was disabled for purposes of receiving SSA benefits. In that decision, it was noted the veteran had various disabilities including anxiety, lung disease, and a right leg impairment. The medical records of Mark A. Jester, M.D., show he examined the veteran in March 1992. At that time the veteran complained that his main problem was breathing difficulties. He stated he was diagnosed as having these problems in 1960. He reported that he did not take medications for this impairment until 1982. He reported never requiring hospitalization of emergency room visits for breathing difficulties. He stated that he could walk 1 to 2 blocks or up one flight of stairs, but the limiting factor was his feet and not his breathing. On examination, the veteran had diffuse decreased breath sounds, but no adventitial sounds. Findings with regard to the back, extremities, and joints were normal. A pulmonary function test was interpreted as showing a mild airflow obstruction with minimal reduction of vital capacity on suboptimal patient performance. The assessments included COPD, and degenerative joint disease, primarily in the right foot and knee. A follow-up visit later that month showed problems were stable. Another follow-up visit in April 1992 showed the lungs to be clear to auscultation. At that time, Dr. Jester noted there was no evidence of COPD. In May 1992, the veteran returned for complaints of breathing problems. The assessment was viral upper respiratory infection. In October 1992, the veteran submitted a duplicate copy of Dr. Colon's record in response to the RO's request for a medical report from Dr. Chiles. Kevin E. Whitton, D.P.M., reported that he initially examined the veteran in September 1993. At that time, the veteran's chief complaint was pain in the right foot especially around the right great toe joint. He gave a history of a fracture of the right foot while on active duty and right foot discomfort since that time. On exami-nation the veteran had some reduced range of motion to the right first metatarso-phalangeal joint. Dorsiflexion was limited to 25 degrees and plantar flexion to 30 degrees. An attempt to extend the great toe was met with limitation and considerable discomfort. There was some crepitus upon range of motion of the first metatarsal joint. There was also tenderness upon palpation of the first metatarsophalangeal joint, especially at the dorsolateral aspect. In the mid-foot area there was diffuse tenderness along the tarsometatarsal joint and also tenderness upon range of motion in that area. X-rays showed narrowing of the first metatar-sophalangeal joint and flattening of the head of the metatarsal. The veteran was advised there was a hallux limitus with degenerative arthritis of the first metatarso-phalangeal joint. A VA examination was scheduled for the veteran in September 1993. This examination was to cover his feet, joints, respiratory system and spine. He failed to report for the examination. II. Analysis The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims that are not inherently implausible. Following the Board's 1992 remand, the relevant evidence has been developed to the extent possible. The veteran failed to report to a scheduled 1993 VA examination. See 38 C.F.R. § 3.655 (failure to report for VA examination); Wood v. Derwinski, 1 Vet.App. 190 (1991) (duty to assist is not a one-way street). No further assistance to the veteran is required to comply with the duty to assist. 38 U.S.C.A. § 5107(a). A. Entitlement to Service Connection for a Low Back Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Secondary service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The veteran's 1959-1961 service medical records do not show any low back problems, and the spine was normal at the 1961 discharge examination. This is highly probative evidence that a chronic low back disorder was not present during active duty. There is no medical evidence of treatment for a back problem until at least 1982, when the veteran first saw Dr. Moore who has since diagnosed fibrositis of the back. The absence of medical documentation of the condition for many years after service is persuasive evidence of an absence of continuity of symptoms since service. Mense v. Derwinski, 1 Vet.App. 354 (1991). Dr. Moore has made general statements that the veteran's varied health problems started in service, but this is of little or no probative value, given that the doctor's statements are only a recitation of an unsubstantiated history provided by the veteran. See Reonal v. Brown, 5 Vet.App. 458 (1993). The 1990 statement of a pharmacist, Mr. Kerr, is similarly of little probative value. Mr. Kerr only recounts giving unspecified drugs on unspecified dates since the early 1960's for a variety of ailments, one of which was fibrositis of the back. Without corroborating records and precise dates, this statement is not useful in showing the veteran had a low back problem at a time proximate to service. Some of the medical evidence, such as a 1990 VA examination suggests that a chronic low back disorder does not exist. None of the medical providers has opined that the veteran's service- connected right third metatarsal condition actually caused a back condition, which relationship must be shown for secondary service connection. See Leopoldo v. Brown, 4 Vet.App. 216 (1993). The weight of the evidence shows a chronic low back disability was not present in service or for years later, and was not caused by an incident of service or a service-connected disability. A low back disability was not incurred in or aggravated by service, and is not proximately due to or the result of a service- connected disability. As the preponderance of the evidence is against service-connection, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Entitlement to an Increased (Compensable) Evaluation for the Residuals of a Fractured Right Third Metatarsal Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Moderate residuals of a foot injury warrant a 10 percent evaluation. 38 C.F.R. § 4.71a, Code 5284. Where the minimum schedular evaluation requires residuals and the schedule does not provide a noncompensable evaluation, a noncompensable evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. The history of the disability must be taken into account when assigning the current rating. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In this regard, the service records show that in 1960 the veteran was treated for a simple fracture of the right third metatarsal; no other area of the foot was injured, and treatment apparently was successful, as evidenced by the normal findings at the 1961 discharge examination. Although Dr. Moore recorded the veteran's complaints of continued symptoms in 1984, a VA examination including X-rays later that year disclosed no residuals of the service injury. Similarly, Dr. Moore and others reported symptoms in 1990, but a VA examination, including X-rays, later in 1990 found no residuals of the old right third metatarsal fracture. Subsequent medical records and lay statements indicate the veteran has problems with his feet, particularly the right one. However, the evidence does not relate the problems to the service-connected residuals of a fracture of the right third metatarsal. The 1991-1993 records of Drs. Colon, Chiles and Whitton show the veteran has symptoms of bilateral hallux limitus with degenerative joint disease of the first metatarsophalangeal joint, apparently worse on the right side. This problem has not been medically linked to the service-connected condition, and symptoms of the non-service-connected condition may not be considered in rating the service-connected disability. 38 C.F.R. § 4.14. It bears emphasis that the veteran was given an opportunity to appear for a VA examination in 1993 to help establish this claim, but he failed to report. The preponderance of the evidence shows that the service- connected residuals of a fracture of the right third metatarsal are healed and asymptomatic, warranting a zero percent rating. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an increased (compensable) rating is denied. C. Whether New and Material Evidence Has Been Submitted to Reopen a Claim for Service Connection for COPD The 1985 RO denial of service connection for COPD became final when no appeal was made within one year. 38 U.S.C.A. § 7105. Thus, the claim may not be reopened without the submission of new and material evidence. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet.App. 140 (1991). For evidence to be new, it must not be redundant or cumulative of evidence earlier of record; for evidence to be material, it must be relevant and probative to the issue at hand, and when raised in context of all the evidence, it must raise a reasonable possibility of a change in the outcome of the prior adverse RO decision. 38 C.F.R. § 3.156; Colvin v. Derwinski, 1 Vet.App. 171 (1991). Evidence of record at the time of the 1985 RO decision included 1959-1961 service medical records showing normal lungs, and no medical evidence of COPD prior to coming under the care of Dr. Moore (in 1982), even though the veteran claimed to have had breathing problems since service. The evidence added to the record since 1985 RO decision, in support of the veteran's application to reopen his claim, consists of reports from Dr. Moore dated in August 1990, September 1990, and March 1991; the SSA determination in August 1991; the statements of Mr. Kerr (pharmacist) in September 1990 and Mr. [redacted] (work supervisor) in October 1990; and the records of medical treatment rendered by Dr. Jester between March and May 1992. Information in this additional evidence that the veteran has COPD is cumulative of evidence previously considered by the RO in 1985; it is not new evidence. The additional reports from Dr. Moore contain essentially the same information as submitted in his previous reports with the exception that he states that most of the veteran's physical problems, including COPD, began in service. The doctor is only repeating an unsubstantiated history recited by the veteran; the doctor's statement lacks probative value and is not material. Reonal v. Brown, 5 Vet.App. 458 (1993). Mr. Kerr's general statement of providing drugs to the veteran for many illnesses over many years is new evidence, but it is not material, since viewed in the context of all the evidence, it does not raise a reasonable possibility of a change in the prior adverse outcome. Mr. [redacted]'s statement of the veteran's recent breathing problems at work also does not meet this definition of material evidence. Dr. Jester's records contain references to COPD long after service, but this is not material evidence because it does not connect the disease with service. Cox v. Brown, 5 Vet.App. 95 (1993). For these reasons, I find that no new and material evidence has been submitted to reopen the claim for service connection for COPD. Thus, the claim is not reopened and the 1985 RO decision remains final. D. Whether New and Material Evidence Has Been Submitted to Reopen a Claim for Service Connection for a Right Leg Disability The 1985 RO denial of service connection for a right leg disability became final when not appealed within one year. As noted, the claim may not be reopened without the submission of new and material evidence. The evidence of record, when the RO denied the claim in 1985, included the 1959-1961 service medical records showing the service-connected right third metatarsal fracture, but no other right lower extremity problems. A 1984 statement of Dr. Moore referred to a right leg problem, although a 1984 VA examination showed no right leg pathology. The evidence associated with the record since the 1985 RO decision, in support of the veteran's application to reopen his claim for service connection for a right leg disability, consists of reports from Dr. Moore, dated in 1990 and 1991; a written statement from Mr. Kerr, dated in 1990; written statements from Mr. [redacted] and Mr. [redacted], dated in 1990; the report of a VA examination conducted in 1990; the records of 1991 medical treatment rendered by Dr. Colon including his referral to Dr. Chiles; the SSA decision dated in 1991; and Dr. Whitton's 1993 records. Dr. Moore's additional statements (repeating the veteran's history of a right leg problem beginning in service) and Mr. Kerr's statement (generally recounting his role as a pharmacist over the years) are not new and material evidence, for the same reasons previously discussed on the COPD issue. The statement of a fellow serviceman, Mr. [redacted], to the effect that the veteran broke his foot and then limped in service, is cumulative of information in the service medical records and is not new evidence. The statement of Mr. [redacted] and the SSA decision, to the effect that the veteran was recently noted to have leg symptoms, is similarly cumulative, not new, evidence. This also is not material evidence because it does not link a right leg condition with service or to the service-connected fracture of the right third metatarsal. The 1990 VA examination, finding no right leg disorder, obviously does not raise a reasonable possibility of a change in the prior adverse decision. Records of Drs. Colon, Chiles, and Whitton refer to problems with the feet, not the right leg, and these records are not material. None of the evidence submitted since the 1985 RO decision is new and material. Thus, the claim for service connection for a right leg disorder is not reopened, and the 1985 decision is final. ORDER Service connection for a back disability is denied. A compensable evaluation for residuals of a right third metatarsal fracture is denied. The application to reopen claims for service connection for COPD and for a right leg disability is denied. L. W. TOBIN 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.