Citation Nr: 0007143 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 96-17 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a low back disorder. 2. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for residuals of a head injury, to include a cysto-tumor and papilledema of the eyes. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The appellant had active duty for training from June 1982 to October 1982 and in March 1985. She also had a period of inactive duty training in December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The case returns to the Board following a remand to the RO in June 1997. Pursuant to that remand, the RO contacted the appellant and inquired as to whether she sought service connection for an eye disorder as a residual of a head injury or as a separate disorder. She responded in the affirmative in statements received in July 1997 and December 1997. Therefore, the statement of the issue on appeal is as set forth above. During the June 1999 hearing before a member of the Board, the appellant indicated her desire to withdraw her appeal with respect to the cervical spine. The hearing testimony, reduced to writing in the form of a hearing transcript, is accepted as a written statement withdrawing the appeal, as is required by regulation. 38 C.F.R. § 20.204(b) (1999). Therefore, this claim is no longer before the Board. In addition, during the hearing, the appellant raised the issues of entitlement to service connection for a bilateral shoulder disorder and entitlement to non-service connected pension benefits. These matters are referred to the RO for the appropriate action. FINDINGS OF FACT 1. In a December 1990 decision, the Board denied entitlement to service connection for claims including a low back disorder and residuals of a head injury to include a cysto- tumor and papilledema of the eyes. In March 1993, the United States Court of Veterans Appeals affirmed the Board's decision. 2. In a December 1993 rating decision, the RO found no new and material evidence to reopen the appellant's claim. The RO notified the appellant of that decision, but she did not initiate an appeal. 3. Evidence received since the December 1993 rating decision is so significant that it must be considered in order to fairly decide the merits of the claim. 4. The appellant had a two-week period of active duty for training from March 2 to March 16, 1985. 5. There is no competent medical evidence showing that the appellant incurred or aggravated a low back disorder during this period of active duty for training. 6. There is no competent medical evidence showing that the appellant incurred or aggravated residuals of a head injury, to include a cysto-tumor and papilledema of the eyes, during this period of active duty for training. 7. The appellant is not a veteran for VA benefit purposes with respect to the above claims. CONCLUSIONS OF LAW 1. The December 1993 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). 2. New and material evidence has been received since the December 1993 rating decision. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. A low back disorder was not incurred or aggravated during active duty for training. 38 U.S.C.A. §§ 101, 1131 (West 1991); 38 C.F.R. §§ 3.1(d), 3.6 (1999). 4. Residuals of a head injury, to include a cysto-tumor and papilledema of the eyes were not incurred or aggravated during active duty for training. 38 U.S.C.A. §§ 101, 1131 (West 1991); 38 C.F.R. §§ 3.1(d), 3.6 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The RO denied service connection for a low back disorder in a November 1988 rating decision. In a February 1990 rating decision, the RO also denied service connection for residuals of a head injury to include a cysto-tumor and papilledema of the eyes. Thereafter, in a December 1990 decision, the Board confirmed the denial of service connection for both claims. Finally, in a March 1993 memorandum decision, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") affirmed the Board's decision. Therefore, the Board's December 1990 decision, which subsumes the RO's decisions, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1104 (1999). In October 1993, the appellant sought to reopen these claims. In a December 1993 rating decision, the RO found no new and material evidence to reopen the previously denied claims. The RO notified the veteran of this decision. However, she did not initiate an appeal. Therefore, the December 1993 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 218 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "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 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). This definition "emphasizes the importance of the complete record for evaluation of the [appellant's] claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a); Winters, 12 Vet. App. at 206. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. The following evidence was of record at the time of the December 1993 rating decision: 1) service medical records; 2) the appellant's April 1988 report of accidental injury; 3) an August 1988 statement from the appellant; 4) the report of the August 1988 VA examination; 5) the appellant's statements in her May 1989 substantive appeal; 6) the appellant's statement concerning the service investigation dated in August 1988; 7) testimony from the August 1989 hearing; 8) a December 1987 statement from Air Force Reserve personnel concerning authorization for medical care; 9) a September 1989 statement from Robert K. Kuffa, D.O.; 10) April 1987 and November 1988 records from Brent J. Murphy, M.D.; 11) records dated from November 1988 to October 1989 from Henry Ford Hospital; 12) a Reserve Order dated in January 1990; 13) the cover sheet of the November 1988 Line of Duty determination; and 14) statements for the Line of Duty investigation, consisting of statements from the appellant, J.J.O., R.R.A., S.J.B., J.L.S., and L.E.K. The RO has received a significant amount of evidence since the December 1993 rating decision, some of it duplicative of evidence previously considered. Evidence that was of record at the time of that decision includes the November 1988 Line of Duty cover sheet and statements from the appellant and other personnel, as well as medical records from Henry Ford Hospital dated in November 1988, June 1989, and October 1989. In addition, some of the appellant's testimony from the March 1996 and June 1999 hearing testimony is cumulative of testimony offered in August 1989. However, the balance of the evidence is not duplicative or cumulative of the previously submitted evidence. Moreover, there is some evidence, which goes to both issues, that is so significant that it must be considered in order to fairly decide the merits of the claim. Specifically, the October 1993 statement from Barry Skarf, Ph.D., M.D., of Henry Ford Hospital (received in August 1995) and medical records from Arthur I. Bouier, M.D., require reopening of the claim for consideration with the entire record. Dr. Bouier's records show complaints of back pain both before and after March 1985. Dr. Skarf's statement suggests that the appellant's papilledema could be related to a head injury. Accordingly, the Board finds that there is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). Thus, the claims are reopened. 38 U.S.C.A. § 5108; Winters, 12 Vet. App. at 206. Service Connection Claims As the Board has reopened the claims for service connection for a low back disorder and residuals of a head injury, the Board must now address the claims based on all the evidence of record. Winters, 12 Vet. App. at 206. Initially, the Board finds that the appellant has had ample opportunity to submit evidence and argument on the claims at issue and will therefore not be prejudiced by the Board's consideration of her claims at this time. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The issue before the Board is entitlement to service connection for a low back disorder and residuals of a head injury for purposes of disability benefits. However, before becoming entitled to status as a claimant for VA benefits, an appellant must first demonstrate by a preponderance of the evidence (1) that she is a "veteran," or (2) "veteran" status for the person upon whose military service the claim for VA benefits is predicated. Laruan v. West, 11 Vet. App. 80, 84 (1998). Unless an appellant first carries this initial burden, the laws administered by the Secretary and the resources of VA are not applicable or available. Id. at 84-86. A "veteran" is a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.1(d). "Active military, naval, or air service" includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, as well as any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Inactive duty training means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Therefore, for disorders claimed to have been incurred or aggravated during active duty for training or inactive duty training, the appellant must establish a service-connected disability in order to achieve status as a veteran. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). The threshold requirement for service connection is that the claim is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). First, the Board notes that the evidence shows a history of diagnosed low back strain with lumbar laminectomy in October 1989 and a current diagnosis of pseudotumor cerebri, which was initially diagnosed as papilledema of the eyes and cysto- tumor. Second, the veteran asserts that she fell and was injured during ACDUTRA in March 1985. For the limited purpose of determining whether a claim is well grounded, the Board presumes the truthfulness of her assertion. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). However, after considering all the evidence of record, the Board finds that both of the veteran's claims must fail because there is insufficient evidence to establish service connection. Specifically, a review of the claims folder reveals no competent medical evidence of a relationship between the alleged fall in March 1985 and the appellant's low back disorder and alleged residuals of a head injury. Records from Dr. Bouier show complaints of back pain as early as February 1983, two years before the appellant's alleged fall. She continued to complain of back pain intermittently through 1990. During a March 1988 evaluation, she reported falling on a concrete floor in service in March 1985. There is no opinion in these records that relates the back problems in any way to ACDUTRA. In addition, records from the Hamilton Avenue Family Health Center dated in December 1985 show that she reported injuring her back in the military in Italy. Similarly, records from the University of Michigan dated in March 1989 show reports of back and head pain from March 1985 when she fell on concrete. This evidence is not competent medical evidence of a nexus between ACDUTRA and the low back disorder. Medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In the October 1993 statement, Dr. Skarf states that it was possible that the appellant's pseudotumor cerebri and optic nerve swelling could have resulted from injuries sustained, particularly if they involved her head. The Board finds that this statement is insufficient to establish plausibility of the appellant's claim. A medical opinion expressed in terms of "could" or "may" also implies "could not" or "may not," and is too speculative to establish a plausible claim. Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board acknowledges that the use of cautious language does not always express inconclusiveness in a doctor's opinion on etiology, and that an etiological opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. Lee v. Brown, 10 Vet. App. 336, 339 (1997). However, Dr. Skarf concedes in the statement that he does not know the nature of the appellant's alleged injuries from the reported 1985 fall. Therefore, his opinion can be no more than speculation. In fact, the Board notes that, in a June 1989 letter, Dr. Skarf questioned whether the pseudotumor cerebri was related to the appellant's cardiac problems, which have not been alleged or shown to be related in any way to service. The Board observes that the appellant has submitted two statements from Dr. Skarf, both dated in October 1993. The first submission indicates that, when Dr. Skarf first saw the appellant, she related that she had a history of a back injury secondary to a fall in 1983. The second submission, which was received during the appellant's March 1996 hearing, indicates that the appellant related a history of a back injury secondary to a fall in March 1985. Otherwise, the statements are identical. Other records from Dr. Skarf and Henry Ford Hospital also show a report of service injury in 1983 as well as in 1987. There is no evidence of record to suggest that the appellant is a trained medical professional. Therefore, as a lay person, she is competent to relate and describe her symptoms, but she is not competent to offer an opinion on matters that require medical knowledge, such as a determination of etiology. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Similarly, the appellant's testimony suggesting that a doctor told her that her eye problems were directly related to head injuries sustained in a fall in 1985 during ACDUTRA is insufficient to establish service connection. "[T]he connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette, 8 Vet. App. at 77. Finally, during the March 1996 hearing, the appellant indicated that there were medical books that explained that an injury was the only way to incur her eye problems. The Board acknowledges that, in certain circumstances, medical treatise evidence may be sufficient to establish plausibility. Sacks v. West, 11 Vet. App. 314, 317 (1998); Wallin v. West, 11 Vet. App. 509, 513 (1998). However, in this case, the appellant did not in fact submit such evidence. As discussed above, the appellant must show by a preponderance of the evidence that she is a veteran. Laruan, 11 Vet. App. at 84-86. Because the record does not establish that the appellant was disabled from an injury incurred or aggravated in line of duty while serving on active duty for training, the Board cannot recognize the appellant as having veteran status during the period in question, March 1985. 38 C.F.R. § 3.6(a). Therefore, the claim must fail as a matter of law. Cacalda v. Brown, 9 Vet. App. 261, 265 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). ORDER Service connection for a low back disorder is denied. Service connection for residuals of a head injury, to include a cysto-tumor and papilledema of the eyes is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals