Citation Nr: 0003432 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 96-01 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disorder REPRESENTATION Appellant represented by: Arizona Veterans Service Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from April 1955 to February 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1995 rating decision from the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for a right hip disorder and found that new and material evidence adequate to reopen the claim for service connection for an eye condition and a low back condition had not been submitted. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between the veteran's current right hip degenerative arthrosis and any incident of his military service, including the documented September 1955 fall. 2. The veteran's claims of entitlement to service connection for residuals of an injury to the back and for an eye disability were denied by a final Board decision dated in February 1976. 3. The evidence received subsequent to the February 1976 Board decision, for the claim for service connection for a low back disorder, is not cumulative or redundant, bears directly and substantially upon the specific matter under consideration, and must be considered to fairly decide the merits of the veteran's claim. 4. There is no competent medical evidence of a nexus between the veteran's current thoracic spine degenerative joint disease and lumbar spine degenerative arthrosis and any incident of his military service, including the documented September 1955 fall. 5. Additional evidence in support of the veteran's claim of entitlement to service connection for an eye disorder, submitted since the February 1976 Board decision, is either duplicative or cumulative of evidence previously submitted. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a right hip disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. New and material evidence having been presented, the claim of entitlement to service connection for a low back disorder is reopened. 38 U.S.C.A. § 5108 (West 1991), 38 C.F.R. § 3.156(a) (1999). 3. The claim of entitlement to service connection for a low back disorder is not well grounded. 38 U.S.C.A. § 5107(a). 4. The February 1976 Board decision, denying service connection for an eye disability, is final. 38 C.F.R. §§ 19.104, 19.153 (1974); (38 U.S.C.A. § 7104(b) (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999)). 5. No new and material evidence has been presented to warrant reopening a claim of entitlement to service connection for an eye disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service enlistment examination, dated in April 1955, noted no abnormalities of the spine or lower extremities. The veteran's distance visual acuity was right 20/200 corrected to 20/30 and left 20/200 corrected to 20/20. A Record of Injury, dated in September 1955, indicates that the veteran fell from a fire escape platform due to deterioration of the wood and incurred head injuries in the fall. The veteran was hospitalized for eight days following this injury, during which time the head wound was sutured. Hospitalization records noted repeated complaints of pain in the right occipital area and in the lower back. X-ray examination of the lumbar spine in September 1955 was normal, showing no evidence of fractures and disc spaces within normal limits. X-ray examination of the skull showed minimal separation of the posterior portion of the squamo-parietal suture on the right side, which might or might not have been due to the recent trauma. Service medical records in May 1956 note a complaint of red eyes since a gas chamber test, three days previous. A congenital defect, but no evidence of a foreign body, was noted. The veteran was hospitalized from July to August 1956 with a diagnosis of strabismus, intermittent exotropia, cause undetermined. A resection of the medial recti was performed during hospitalization. At admission, the veteran reported a three-to-four year history of occasional diplopia and eye strain, with an increase in symptoms over the previous three- to-four months. The clinical record indicated that such was not incurred in the line of duty and existed prior to service. Hospital record noted that the veteran's post- operative course was satisfactory, but he had considerable irritation of the eyes. A consultation report in October 1956 recommended further surgery to correct exophoria, but the veteran did not "think any more surgery would help his eyes." The veteran's separation medical examination, dated in January 1957, noted no abnormalities of the spine or lower extremities. Scar tissue was noted on "nasal side conjunctive from previous surgery", with no evidence of conjunctivitis at that time. The examiner noted a diagnosis of congenital strabismus corrected by bilateral medical rectus resection. The examiner further stated that there were objectively good results from surgery and that, although the veteran insisted that he needed further surgery, no further surgery was required. The veteran's distance visual acuity was right 20/200 corrected to 20/20 and left 20/200 corrected to 20/15. In February 1957, the veteran filed an initial claim for VA benefits for eye strain with unbalanced muscles and loss of vision and for skull fracture and back injury. The veteran noted that the eye condition had existed since 1948, but was aggravated by the September 1955 fall from the fire escape. In a statement received in March 1957, the veteran reported that following the September 1955 fall, he began to suffer from severe headaches, loss of vision, sore and bloodshot eyes, and an increase in a pre-existing "muscle imbalance." The veteran also reported back pain and easy fatigability for approximately one month following this incident. The veteran also submitted two letters from his mother and his sister stating that, prior to service, his eye condition did not bother him much, but that the veteran reported increased headaches, loss of vision, and sore eyes following the September 1955 fall and the July 1956 surgery. A VA examination was conducted in March 1957. On eye examination, the veteran reported increased diplopia during service. Visual acuity was right 6/200 corrected to 20/30 and left 6/200 corrected to 20/25. The examiner noted 1 prism biopter (sic) of exophoria near and 5 at distance. A diagnosis of bilateral correctable mixed astigmatism was noted. The examiner stated that the findings noted were developmental defects. On orthopedic examination, the veteran reported pain and weakness of the low back for one month following the November 1955 incident, with no trouble with the back since that time. Flexion was 100 percent of normal. A diagnosis of history of low back injury was noted. By rating decision in May 1957, the RO in Milwaukee, Wisconsin, denied service connection for bilateral correctable mixed astigmatism as a constitutional or developmental abnormality and denied service connection for a low back injury as not found on the last examination. The RO considered the veteran's service medical records and March 1957 VA examination in the decision. The veteran was notified of this decision under cover letter dated in May 1957. The veteran filed a request to reopen his claim for service connection for a left eye condition and a back condition in January 1975. The veteran also filed an initial claim for service connection for a hip condition at that time. In a statement received in March 1975, R.E.S., D.C., stated that he treated the veteran for low back syndrome from July to December 1959. The veteran was hospitalized from April to May 1975 with diagnoses of intermittent exotropia, convergence insufficiency type, and arthralgia of low back and right hip. The veteran reported diplopia following the head injury during service, which was surgically corrected in 1956. The veteran stated that he had had no further diplopia until 10- to-12 months prior to the current admission. He further reported a history of low back and right hip pain, possibly related to the fall during service. Physical examination showed exotropia of 10 degrees on primary gaze for distance and about 20 diopters at near. X-ray examination of the right hip and low back were normal. By rating decision in April 1975, the RO in Milwaukee, Wisconsin, again denied service connection for low back syndrome and bilateral astigmatism. The RO did not address the claim for service connection for a hip condition. The veteran timely perfected an appeal on both issues. In February 1976, the Board found that the veteran had no eye disability which was not congenital or developmental in nature. The Board further found that the trauma to the back incurred during service was acute and transitory and without residual. The Board denied entitlement to service connection for residuals of an injury to the back and for an eye disorder. The veteran filed a request to reopen his claim for service connection for back and eye problems in December 1994. The evidence, submitted since the final Board decision in February 1976, includes VA treatment records, statements of the veteran, and testimony of the veteran at a hearing in May 1996. A VA outpatient treatment record in May 1991 noted complaints of considerable problems with allergies, especially eye irritation. Mild allergic conjunctivitis was noted in both eyes. VA X-ray examination of the thoracic spine in August 1993 revealed degenerative joint disease without any compression fractures or extremely narrowed disc spaces. X- ray of the lumbar spine at the same time showed no compression fractures or compromised disc spaces. In a statement in support of his claim, received in May 1995, the veteran stated that he wished to add the issue of service connection for a right hip condition. The veteran further stated that he suffered from scars in both eyes due to the 1956 surgery and that his right leg is 3/8 inch shorter than his left leg due to the back injury suffered in the 1955 fall. He noted that, during his hospitalization in approximately 1974, it was determined that both of these conditions were the result of the 1955 fall. VA outpatient treatment records in February 1995 noted complaints of increased back pain. In June 1995, the veteran complained of chronic double vision and eye soreness. In his notice of disagreement, received in September 1995, the veteran stated that while hospitalized in the early 1970s, a physician told him that his lower back, hip and left eye condition "must not be service connected." The veteran noted that he reviewed his service medical records at that time, and that the injury to his back, hip and eyes was recorded in those records. He stated that when he pointed this out to the physicians in the early 1970s they stated that the conditions were service connected, specifically to an injury to the "Durcell (sic) muscle." The veteran further reported that he was told by physicians that scar tissue was visible in both of his eyes due to surgery during service. VA X-ray examination of the lumbosacral spine in March 1996 revealed degenerative arthrosis involving L3-5. X-ray examination of the right hip showed minimal degenerative arthrosis. At a hearing before an RO hearing officer in May 1996, the veteran testified that he had no problems with his eyes prior to service, other than the need for glasses. Transcript, p. 3. He stated that his sister's earlier statement, indicating that he had a pre-existing eye condition, was mistaken. Transcript, p. 3. He noted that he had double vision, soreness in his eyes and that his eyes were bloodshot, following the surgery during service. He stated that prior to service he never had double vision. Transcript, p. 3. The veteran testified that during hospitalization in 1975, surgery was scheduled for scar tissue in his eyes, which was causing irritation, but the surgery was canceled. Transcript, pp. 3-4. He reported that he had recently been provided with glasses with prisms to correct the double vision, but the glasses were not effective. Transcript, p. 4. The veteran indicated that the history of diplopia in his service medical records was incorrect. Transcript, pp. 6-8. He stated that his eye condition during service, requiring surgery, was due to the fall during service. Transcript, p. 8. The veteran testified that he had no back injury or problems prior to his induction into military service. Transcript, p. 11. He stated that he had severe back pain following the accident during service and had problems lifting and bending. He stated that his right hip would come out of joint. He reported that he saw a private physician for his hip problems, but did not know how to locate the physician. Transcript, p. 12. The veteran testified that the private physician showed him that his right leg was shorter than the left due to his back injury during service and that his spine was being pulled abnormally to the right because of the hip condition. Transcript, p. 13. He stated that his hip condition did not manifest during service, because he performed only desk work. Transcript, p. 15. A VA outpatient treatment record in August 1996 noted complaints of double vision "off & on." The examiner reported assessments of exophoria, which by history decompensated with straining late in the day, and orthotopia in all fields of gaze, and status-post successful strabismus surgery in the past. Physical therapy notes in August 1996 reported complaints of chronic lower back pain and right lower extremity radiculopathy with chronically dislocating right hip, since a fall in 1956. II. Analysis Service Connection for Right Hip Disorder Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d). The threshold question to be answered in the veteran's appeal is whether he has presented evidence of a well-grounded claim. Under the law, 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. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy, 1 Vet. App. 78 (1990). The United States Court of Appeals for the Federal Circuit held that, "For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. §§ 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). Alternatively, the second and third elements may be satisfied under 38 C.F.R. § 3.303(b) (1999) by: a) Evidence that a condition was "noted" during service or during an applicable presumption period; b) Evidence showing post- service continuity of symptomatology; and c) Medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 497 (1997). The record contains evidence of a current right hip disability. X-ray examination in March 1996 revealed minimal degenerative arthrosis of the right hip. The veteran's service medical records contain no complaints, diagnoses or opinions of any right hip pain or pathology. The veteran contends that his current right hip condition is a result of the September 1955 fall, which resulted in a head injury and complaints of back pain. The record contains no competent medical evidence providing a nexus between the veteran's current degenerative arthrosis of the right hip and any incident of the veteran's military service. The Board notes that the right hip condition was first diagnosed more than 40 years after the incident during service. The first mention of record of right hip pain is in the hospitalization records in 1975, twenty years after the incident during service. Although the veteran reported in his notice of disagreement that during hospitalization in 1975 the physician stated that his hip condition was service- connected, the records of that hospitalization note only a history of right hip pain, with normal X-ray examination. The Court has recognized that the statement of a veteran as to what a doctor told him is insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 4, 6 (1993). Further, the veteran's claim is not well grounded under the alternative method, as no right hip disorder was "noted" during service. Without competent evidence of a nexus between the veteran's current right hip arthrosis, diagnosed almost 40 years after discharge from service, and any incident of service, including the documented fall in September 1955, the veteran's claim cannot be well grounded. The Board recognizes that there is no duty to assist in a claim's full development if a well-grounded claim has not been submitted. See Morton v. West, 12 Vet. App. 477, 480 (1999). However, the Court has held that there is some duty to inform the veteran of the evidence necessary for the completion of an application for benefits, under 38 U.S.C.A. § 5103 (West 1991), even where the claim appears to be not well grounded. Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996); Robinette v. Brown, 8 Vet. App. 69, 79-80 (1995). The veteran testified at the hearing that a private physician treated him for his hip condition shortly after discharge from service. This physician, Dr. R.E.S., was contacted and responded in 1975, that the veteran was treated for low back syndrome, with no mention of any right hip disorder or etiology thereof. The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim. Thus, VA has satisfied its duty to inform the veteran under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). New and Material Evidence Generally When a claim is denied by the RO and no timely appeal is filed, the claim, generally, may not thereafter be reopened and granted and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105(c) (West 1991). However, if new and material evidence is presented or secured with respect to a claim which has been denied, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). When a veteran seeks to reopen a claim based on additional evidence, the Board must perform a three-step analysis. First, the Board must determine whether the evidence is "new and material." If the Board determines that the veteran has produced new and material evidence, the claim is reopened and the Board must then determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a). Finally, if the claim is well grounded, the Board must evaluate the merits of the veteran's claim in light of all the evidence, after ensuring that the duty to assist has been fulfilled under 38 U.S.C. § 5107(b). Winters v. West, 12 Vet. App. 203 (1999) (en banc); Elkins v. West, 12 Vet. App. 209 (1999) (en banc). New and material evidence means evidence not previously submitted, which is neither cumulative nor redundant, and bears directly and substantially upon the specific matter under consideration, 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); see Hodge v. West, 155 F.3d 1336 (Fed. Cir. 1998). For the limited purpose of determining whether to reopen a claim, the credibility of the evidence is to be presumed. In addition for the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. However, this presumption does not apply in the adjudication of a well-grounded claim. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and Material Evidence for Low Back Disorder The veteran's claim for service connection for a low back disorder was previously denied by the RO in May 1957 and by the Board in February 1976. Prior to the final Board decision in February 1976, the record contained no evidence of a current low back disability. The evidence submitted since that time, includes an X-ray examinations showing degenerative arthritis of the lumbar spine and degenerative joint disease of the thoracic spine. These reports of X-ray examinations are both new, in that they were not previously considered, and material, in that they go to one of the elements necessary for submission of a well-grounded claim. Therefore, the Board finds that the veteran has submitted sufficient evidence to warrant reopening of his claim for service connection for a low back disorder. The Board must now determine whether, based upon all the evidence and presuming its credibility, the appellant's claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a). "For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability." Epps, 126 F.3d at 1468. As noted above, the record contains evidence of a current low back disability. X-ray examination in August 1993 showed degenerative joint disease of the thoracic spine and X-ray examination in March 1996 revealed degenerative arthrosis of the lumbar spine. The veteran's service medical records show that the veteran suffered a fall from a fire escape in September 1955 and complained of back pain during hospitalization following this incident. However, this injury appeared to be acute and transitory and had resolved by service separation. No further complaints, diagnoses or opinions of lower back pain or pathology were noted in the remaining year and a half of the veteran's active service. No abnormalities of the spine were noted on separation examination in January 1957. In addition, the record contains no competent medical evidence of a nexus between the veteran's current degenerative conditions of his thoracic and lumbar spine and any incident of his military service, including the fall in September 1955. Although the veteran has reported a history of lower back pain since the incident during service, and lower back pain was noted during service, the record contains no medical evidence providing a nexus between the present disability and the reported symptomatology. Dr. R.E.S. noted treatment for low back syndrome in 1959, two years after the veteran's discharge from service, but did not provide an opinion as to the etiology of this condition. Similarly, although the veteran reported a history of lower back pain during hospitalization in 1975, the physician provided no opinion as to etiology of the complaints of pain. The physical therapy notes in August 1996, merely documented the veteran's complaints of pain since the fall during service, without providing competent evidence that the current condition was related to that, or any, incident of service. Without evidence of a nexus between the veteran's current degenerative back disorder and any incident of his military service, including the September 1955 fall from the fire escape, the veteran's claim cannot be well grounded. As noted previously, the Board recognizes that, although there is no duty to assist in a claim's full development if a well-grounded claim has not been submitted, there is some duty to inform the veteran of the evidence necessary for the completion of an application for benefits, even where the claim appears to be not well grounded. See Morton, 12 Vet. App. at 480; Beausoleil, 8 Vet. App. at 465; Robinette, 8 Vet. App. at 79-80. The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim by showing a nexus between the veteran's current back disorder and any incident of his military service. Although the veteran stated both Dr. R.E.S. and the physician during hospitalization in 1975 reported such a nexus to him, the medical records from Dr. R.E.S. and from the hospitalization in 1975 do not support these statements. Thus, VA has satisfied its duty to inform the veteran under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). New and Material Evidence for Eye Disorder The veteran's claim for service connection for an eye disorder was previously denied by the RO in May 1957 and by the Board in February 1976. The evidence submitted since the February 1976 Board decision, includes VA treatment records, statements of the veteran and testimony of the veteran at a May 1996 hearing. The statements and testimony of the veteran, although in new form, are repetitive of arguments made prior to the February 1976 Board decision. The veteran continues to contend that his eye disorder is not a congenital or developmental disorder, as found by the Board in February 1976. The veteran further reported continued complaints of double vision, bloodshot eyes, and soreness in the eyes. These complaints were also considered prior to the Board's February 1976 decision. The VA outpatient treatment records in August 1996 continue to report the same disability as that noted prior to the Board's earlier decision and contain no finding that such was not a congenital or developmental deformity, as found by the Board in February 1976. As to the veteran's testimony at the hearing, that prior to his service he had no eye problems, other than the need for glasses, the Board finds that such evidence is new, but not material to the instant claim. This statement by the veteran is new, in that it is directly contradictory to history reported by the veteran at the time of hospitalization for eye surgery in 1956, on his initial claim in February 1957, and at the VA examination in March 1957 and to history reported by both the veteran's mother and sister in 1957. However, even presuming the credibility of this new self- serving statement, the Board finds that the statement by itself or in connection with evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. By itself, the veteran's statement merely indicates that he had no observable symptoms of a later diagnosed congenital or developmental disorder, noted during service and on the March 1957 VA examination. The record does not reflect that the veteran has a medical degree or qualified medical experience. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, although he is competent to testify as to observable symptoms or the lack thereof, he is not competent to provide evidence or opinion that the lack of earlier observable symptoms indicate that later diagnosed disability was not a congenital or developmental deformity. Cf. Savage, 10 Vet. App. at 497. The statements of the veteran provide no medical evidence to indicate that the veteran suffers from any eye disability, which is not congenital or developmental in nature. The Board finds that the evidence submitted is not sufficient to reopen the claim for service connection for an eye disorder. ORDER Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a low back disorder is denied. No new and material evidence having been received, the application to reopen the claim for service connection for an eye disorder is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals