Citation Nr: 0005665 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 97-11 378 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES Whether new and material evidence has been submitted to reopen claims for service connection for residuals of a lung injury, residuals of pneumonia, residuals of hepatitis, a rectal fistula, a colon disorder, and a leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Cooper, Associate Counsel INTRODUCTION The veteran served on active duty from January 1951 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 RO decision which denied the veteran's application to reopen claims for service connection for residuals of a lung injury, residuals of pneumonia, residuals of hepatitis, a rectal fistula, a colon disorder, and a leg disability. A videoconference hearing was held before a member of the Board in August 1999. FINDINGS OF FACT 1. In November 1995, the Board denied the veteran's claims for service connection for residuals of a lung injury, residuals of pneumonia, residuals of hepatitis, a rectal fistula, a colon disorder, and a leg disability. 2. The evidence submitted since the November 1995 Board decision is cumulative and redundant of evidence previously considered, or the additional evidence, 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 claims. CONCLUSION OF LAW The veteran has not submitted new and material evidence since the 1995 Board decision, and his claims for service connection for residuals of a lung injury, residuals of pneumonia, residuals of hepatitis, a rectal fistula, a colon disorder, and a leg disability are not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R.§ 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty in the Army from January 1951 to October 1952. The veteran's service medical records are unavailable; the National Personnel Record Center (NPRC) has reported that such records were apparently destroyed in the 1973 NPRC fire. A July 1968 VA hospital summary shows that the veteran was seen complaining of a boil on his buttocks which began two weeks ago. He also gave a past history of internal hemorrhoids with bright red bleeding. Examination showed a peri-rectal abscess, for which an incision and drainage was performed. It was noted that old scars around the rectum indicating the possibility of fistula in ano. A November-December 1968 VA hospital summary shows that the veteran was seen for fistula in ano. It was noted that he had some drainage in the region of two very small openings in the skin. A history of bright red rectal bleeding and peri- rectal abscess was noted. A fistulectomy was performed during this admission, and the diagnosis was fistula in ano. In September-October 1972, the veteran was treated at a VA hospital complaining of a three day history of left lower chest pain, associated low grade fever, and cough productive of no sputum. He related that he had a history of treatment for lingular pneumonia as an outpatient in 1966. The veteran denied any symptoms in the lower extremities for venous thrombosis or pelvic inflammation. Examination of the chest revealed fine rales in the left base posteriorly as well as a very notable splinting in the left throughout the entire examination. Chest X-rays revealed a blunted right hemidiaphragm, prominent vascular markings bilaterally, and a high left hemidiaphragm with a questionable lingular segment infiltrate. The diagnoses were idiopathic multiple pulmonary emboli with infarction, and thrombophlebitis of both lower extremities. No source was shown for the pulmonary emboli as a venogram performed near the end of his hospital stay was completely within normal limits. A December 1992 VA triage record shows that the veteran was seen for complaints of trouble breathing, chest pain, and a feeling of heavy legs. He said he had this problem for a couple of months. He reported a history of a blood clot in the lung in 1972 or 1973, rectal fistula, pneumonia, and back problems. Later in December 1992, he underwent cardiac catheterization; he was diagnosed as having coronary artery disease and angina pectoris; and he subsequently received treatment for heart disease. In January 1993, the veteran filed a claim for service connection for a lung condition and hepatitis. He said his lung was injured in a jeep wreck during service in Korea in 1951 and he was then also treated for hepatitis. The only post-service treatment he reported was at the VA in 1992, supposedly for a lung condition. In a February 1993 statement, the veteran said a jeep turned over and landed on him in Korea in 1951, breaking his ribs, and he felt the accident had caused problems with his health. He said that since service he had problems with his lungs, including pneumonia, and with his legs and colon. He reported treatment in the 1960s and 1970s for a rectal fistula. In a March 1993 statement, the veteran said that the November 1951 jeep accident broke his ribs and forced air out of him, and that in April or May 1952 he was hospitalized for hepatitis. On VA examination in March 1993, the veteran complained of arterial blockage, chest pains, back pain, and an asymptomatic umbilical hernia. The examiner noted that the veteran had an unsteady gait and used a cane. His chest was symmetrical and non-tender with no restriction in expansion. The lungs were clear with diminished breath sounds over the left lung fields, more than the right. No rales or wheezes were heard. The veteran described dyspnea on walking 400 to 500 yards. He reported anterior chest pain and a productive cough with occasional yellow phlegm. The veteran demonstrated free movement of all extremities. The chest X- ray was essentially negative with no acute findings; however, parenchymal and pleural scarring in the left lung base was revealed. X-rays of the ribs were normal. Laboratory results reflected that the veteran was positive for hepatitis Type A antibodies; however, no chronic disorder was found. The diagnosis was coronary artery disease and low back pain syndrome. In a September 1993 statement, the veteran indicated that in November 1951 a jeep turned over on top of him and ruptured his navel. He said that in April or May 1952, he was diagnosed with hepatitis and was also treated for intestinal worms. The veteran also related that he had a blood clot in his left lung in 1972. During a February 1994 RO hearing, the veteran testified that a jeep turned over on him in November 1951 and "mashed all of the air out of him" during active duty in Korea. He said that he was then treated at a field hospital for broken ribs; he said his chest was taped and he was sent back to his company. The veteran indicated it was his personal belief that the injury was responsible for later problems with a collapsed lung and pneumonia; he said that after service, in the late 1950s or early 1960s, he was treated for pneumonia and pleurisy, and he later had more treatment for pneumonia. He stated that in March or April 1952 he was briefly hospitalized for hepatitis. He noted that during that admission he was also found to have intestinal worms, and he was dewormed. The veteran testified that he had a boil on his buttocks at service discharge but he did not report it. He related that he self-treated an abscess until he received treatment for a rectal fistula by the VA in the 1960s. He said that his claim concerning a colon condition pertained to the rectal fistula. He claimed that he injured his leg during basic training when he fell into a foxhole in early 1951. In a May 1994 letter, the veteran's former wife claimed that the veteran told her about a jeep accident that he was involved in during service in Korea. The veteran told her that the accident caused a hernia in his rectum. She noted that he kept his rectal fistula problems to himself until he sought treatment at a VA hospital due to pain. In another letter that same month, the veteran's sister noted that he told her that a jeep turned over on him while he was in the Army. She said that he had broken ribs and that air was forced out of his mouth and rectum. She noted that over the years the veteran wondered whether trouble with his lungs and rectum was caused by the jeep accident. The above summarized evidence was on file at the time of the November 1995 Board decision which denied service connection for residuals of a lung injury, residuals of pneumonia, a rectal fistula, a colon disorder, and a leg disability. The Board noted there was no competent evidence to show a relationship between the claimed disabilities and service. Service connection for hepatitis was denied on the basis that current residual disability was not shown. Evidence received since the November 1995 decision is summarized below. Morning reports from the service department reflect that the veteran was admitted to a hospital from April to May 1952; however, the reason for admission is not shown. The veteran submitted an April 1996 letter from [redacted] [redacted]. Mr. [redacted] indicated that in November 1951, a jeep rolled over, landing on top of the veteran. He said that he was one of four or five soldiers who lifted the jeep off of him. He knew the veteran was injured but did not know the extent of his injuries at that time. In an August 1996 statement, [redacted] noted that he and the veteran were in basic training together, and that the veteran had recently asked him if he recalled the veteran's injury to his leg during basic training. He said that he did not remember how the veteran hurt himself but he remember that he was hospitalized. In a November 1997 statement, the veteran related that he suffered broken ribs, a collapsed lung, and a ruptured navel as a result of a jeep accident during active service in Korea. He also indicated that his legs and back were injured during service. In October 1997, the veteran underwent a private psychiatric evaluation in connection with his claim for service connection for posttraumatic stress disorder (PTSD). [Service connection was later granted for PTSD.] In a December 1997 statement, F. Joseph Whelan, M.D. recounted the recent psychiatric evaluation. It was noted that the veteran's reported a history of a jeep accident during service in Korea, and reported that the jeep flipped over on him, fracturing his ribs on the right side and injuring his left lung. The veteran related that he also had trouble with his back and legs since that time, he reported that he was diagnosed with hepatitis and intestinal worms during active duty, and he said he injured his legs during basic training. The veteran also gave an account of post-service history. Based on the reported history and mental status examination, Dr. Whelan rendered a diagnosis of PTSD and depression. He opined that it was very probable that much of the difficulties with the veteran's lung, heart condition and legs were causally related to injuries sustained during active duty. Dr. Whelan maintained that it was his opinion to a reasonable medical certainty, that the veteran's present debilitating and disabling conditions were to a large part, related to injuries sustained during service in the Army. On VA PTSD examination in March 1998, the veteran reported a past medical history which included injury to his legs, broken ribs, passing blood in his stools, a collapsed lung, and other conditions from a November 1951 jeep accident. He also related that he had a history of hepatitis in 1952. It was noted that he walked with an unsteady gait and used a cane. The diagnoses were generalized anxiety disorder and adjustment disorder with anxious and depressed mood secondary to physical illness and situational factors. A private psychiatric evaluation conducted in June 1998 by Barry C. Yates, M.D. reiterates the veteran's reported history of injury following a jeep accident during service. PTSD was diagnosed. Similarly, an October 1998 VA PTSD examination recites the veteran's history of injuries from a service jeep accident. In January 1999, the veteran submitted additional VA treatment records dated from many years after service. Some of the records are duplicates of records previously considered. Medical records from 1986 to 1988 show treatment for such conditions as a back disorder (said to be due to a 1981 injury), memory problems, a small umbilical hernia (noted in 1986), and lung complaints. A report of a chest X- ray study from June 1987 reflects elevation of the left hemidiaphragm with adhesions peripherally. Pleural adhesions were observed in the left chest wall with thickening of the pleura. The examiner opined that such findings resulted from an old trauma in the left chest and possibly a previous rupture of the left hemidiaphragm. A slight degree of cardiomegaly was also noted. In April 1999, the veteran submitted copies of portions of medical texts concerning traumatic injuries. The medical literature contains general information regarding blunt injuries to the heart and chest, posttraumatic pulmonary insufficiency, pneumonia, enterocutaneous fistulas, hernias, and posttraumatic liver complications. During a Board videoconference hearing, the veteran submitted a July 1999 document signed by seven physicians/other health professional. The document was written by the veteran and reportedly presented to the health professionals without identifying the veteran as the subject of the document. The document describes a history of a jeep accident during service. The veteran noted that while being pinned under the jeep he could not get a deep breath and lost control of his bowels. He said that he was hospitalized for over 30 days. The veteran stated that on discharge from active service, he had a herniated umbilicus. He also related other post- service medical problems including leg pain, acute pulmonary emboli, rectal fistulas, and abscesses. The document concluded by requesting the doctors' signatures if they agreed that such traumatic injuries could have caused the numerous listed medical problems. At an August 1999 Board hearing, the veteran related that he suffered broken ribs as the result of a jeep accident during service. He testified that his ribs were taped up and he was able to continue his regular duties. The veteran indicated that four months after the jeep accident he was hospitalized and told that he had hepatitis and intestinal worms. He said that at discharge from active duty, he reported residual problems from the accident to the examiner. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for residuals of a lung injury, residuals of pneumonia, residuals of hepatitis, a rectal fistula, a colon disorder, and a leg disability was denied by the Board in November 1995. A Board decision is final, with the exception that a claim may later be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104. The question now presented is whether new and material evidence has been presented, since the 1995 Board decision, which would permit the reopening of the claim. Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence means evidence not previously submitted to agency decision makers 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; Hodge v. West, 155 F.3rd 1356 (Fed. Cir. 1998). At the time of the 1995 Board decision, the veteran's service medical records from his active duty (January 1951 to October 1952) were not available. The Board considered post-service medical records which revealed treatment for peri-rectal abscess and fistula in ano in 1968, and for idiopathic pulmonary emboli and bilateral thrombophlebitis in 1972. The 1972 records include a history of pneumonia in 1966. Other evidence considered by the Board in the 1995 decision included a 1993 VA examination which noted that the veteran was positive for hepatitis Type A antibodies, although no residuals of hepatitis were found. A chest X-ray showed normal ribs and some pleural scarring in the left lung base. The Board also considered the veteran's statements and hearing testimony in which he asserted that most of his claimed disabilities were due to a jeep accident during active service in late 1951, that a leg was also injured earlier during basic training, and that he was treated for hepatitis in early 1952 . The veteran submitted statements from his former wife and from his sister which noted that the veteran told them about his jeep accident during service. The Board denied service connection for residuals of a lung injury, residuals of pneumonia, a rectal fistula, a colon disorder, and a leg disability on the basis that no competent evidence was presented which showed a relationship between the claimed disabilities and service. Service connection for hepatitis was also denied on the basis that current residual disability was not shown. Evidence submitted since the November 1995 Board decision includes service morning reports which reveal that the veteran was admitted to a hospital in April-May 1952; the reasons for this admission are not shown. The dates of the hospitalization correspond to those which the veteran has reported for hospitalization for hepatitis. However, service connection was previously denied for hepatitis on the basis that there is no current residual disability, and no additional medical evidence has been received to show current disability from hepatitis. While the service morning reports are new evidence, under the circumstances they are not material evidence since they are not so significant that they must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Evidence submitted since the 1995 Board decision includes a number of duplicate or cumulative medical records, and such are not new evidence. A chest X-ray report from 1987 suggests that pleural adhesions in the left chest wall resulted from an old trauma in the left chest and possibly a previous rupture of the left hemidiaphragm. Even if this is considered new evidence, it is not material as it does not medically link a current lung condition with the claimed in- service accident or any other incident of service; such evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Since the 1995 Board decision, the veteran has submitted written statements and additional hearing testimony to the effect that he has disabilities due to a jeep accident during service. The veteran's assertions are not new, as they are duplicative of his statements which were of record at the time of the prior final denial of the claims for service connection. Reid v. Derwinski, 2 Vet. App. 312 (1992). The veteran also submitted a 1996 statement from [redacted] which noted that he remembered that a jeep rolled on top of the veteran during service; however, he did not know the extent of his injuries. A 1996 statement from [redacted] related that he recalled that the veteran was in the hospital during their basic training together, but he did not remember the circumstances of the injury, although the veteran recently said it was for a leg injury. The statements by the veteran's two comrades constitute new evidence, but the Board notes that such lay assertions as to the medical diagnosis or causality are neither competent evidence nor material evidence to reopen the previously denied claim. Moray v. Brown, 5 Vet. App. 211 (1993). The Board notes that psychiatric evaluations received since the 1995 Board decision contain recitations of the veteran's story of a jeep accident causing numerous medical problems, and the 1997 statement of Dr. Whelan opines that the veteran's difficulties with his lungs and legs were related to injuries sustained during active duty. Such statements, recorded in the context of a psychiatric evaluation, and unenhanced by any additional or substantive medical findings by the examiners, do not constitute competent medical evidence of causality. A bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. Moreover, historical medical records do not support the veteran's story as to the cause of his conditions, and a medical opinion based on an inaccurate factual premise has no probative value. LeShore v. Brown, 8 Vet. App. 406 (1995); Reonal v. Brown, 5 Vet. App. 458 (1993). While such medical statements are new evidence, they are not material evidence since they are not so significant that they must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Since the 1995 final Board decision, the veteran also submitted copies from portions of medical texts on traumatic injuries. The Board finds that the medical literature is new evidence as it had not been previously considered by the Board; however, it is not material as it is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. The literature is not concerned with the facts of the veteran's particular medical history, and is otherwise too generic to constitute competent medical evidence with which to reopen a claim. See Sacks v. West, 11 Vet. App. 314 (1998), Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Additional evidence submitted in support of his application to reopen his claims includes a 1999 document signed by seven physicians/other health professional describing an alleged service injury and medical history. The document was written by the veteran and does not indicate that the doctors actually examined him; in fact, the veteran says the doctors were not aware of his identity. Under the circumstances, this document is nothing more than a self-reported and unsubstantiated lay history; it is not material evidence to reopen the claim. 38 C.F.R. § 3.156; LeShore, supra; Reonal, supra. Thus, the Board finds that the evidence received since the 1995 Board decision is not new and material. It follows that the claims for service connection for residuals of a lung injury, residuals of pneumonia, residuals of hepatitis, a rectal fistula, a colon disorder, and a leg disability are not reopened. Consequently, the application to reopen the claims must be denied. ORDER The application to reopen previously denied claims for service connection for residuals of a lung injury, residuals of pneumonia, residuals of hepatitis, a rectal fistula, a colon disorder, and a leg disability is denied. L.W. TOBIN Member, Board of Veterans' Appeals