Citation Nr: 0006357 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-09 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for pulmonary tuberculosis. 2. Entitlement to service connection for thyroid disorder. 3. Entitlement to service connection for atrial fibrillation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from February 1943 to January 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1998 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied reopening the claim for service connection for pulmonary tuberculosis and denied service connection for thyroid disorder and atrial fibrillation. FINDINGS OF FACT 1. Service connection for pulmonary tuberculosis was denied by the RO in an April 1954 rating decision. The appellant was notified of the decision and of his appellate rights in a May 1954 letter. He did not appeal the decision. 2. Evidence received since the April 1954 rating decision, which denied service connection for pulmonary tuberculosis, is cumulative and redundant. 3. Competent evidence of a diagnosis of a thyroid disorder is not of record. 4. Competent evidence of a diagnosis of atrial fibrillation is not of record. CONCLUSIONS OF LAW 1. The April 1954 rating decision, which denied service connection for pulmonary tuberculosis, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1999). 2. New and material evidence has not been submitted to reopen the claim for service connection for pulmonary tuberculosis. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The claim for service connection for thyroid disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim for service connection for atrial fibrillation is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and material evidence In the April 1954 rating decision, the RO denied service connection for pulmonary tuberculosis. The evidence at that time were service medical records, the appellant's application for benefits, VA medical records, and a VA physician's opinion. The service medical records reveal that in April 1945, the appellant was diagnosed with pneumonia, primary, atypical, right lower lobe, etiology unknown. A VA hospitalization summary report, dated November 1953, revealed a diagnosis of "undiagnosed disease manifested by x-ray evidence of hilar lymphadenopathy." In March 1954, a VA medical opinion was solicited. The VA physician was asked the following questions: (1) Was pulmonary tuberculosis was shown at induction, and, if so, were the lesions of a primary or reinfection type? (2) If induction film is negative, is pulmonary tuberculosis shown on comparative study of subsequent service films? and (3) If pulmonary tuberculosis is shown on the induction film, is an advancement in lesion demonstrated in subsequent service films? The VA physician stated that pulmonary tuberculosis of the primary infection type, active, was shown on the induction film, dated February 16, 1943, and that there was evidence of advancement in the lesion in the subsequent service film, dated January 12, 1946. He stated that comparative study of the film subsequent to this showed evidence of further instability in that the hilar nodes continued to enlarge and by November 24, 1953, the diagnosis of pulmonary tuberculosis of the primary infection type, moderately advanced and active, could be continued. The VA physician noted that the February 1943 and January 1946 films revealed minimal and active pulmonary tuberculosis. In the April 1954 rating decision, the RO stated that service connection was not warranted for pulmonary tuberculosis because it preexisted service and was not shown to have been aggravated beyond the natural progress of the disease process during service. The appellant was notified of the decision and of his appellate rights in a May 1954 letter. He did not appeal the decision, and it became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103 (1999). A claim may not be reopened unless new and material evidence is submitted. Under section 3.156 of the Code of Federal Regulations, when presented with a claim to reopen a previously finally denied claim, VA must determine if new and material evidence has been submitted. 38 C.F.R. § 3.156 (1999). New and material evidence is defined as follows: [E]vidence 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. Id. at (a). Therefore, in this case, the Board must determine if new and material evidence has been submitted since the April 1954 rating decision. The Court has held that when determining whether the evidence is new and material, VA must conduct a three-step test. Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc)). First, VA must determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 1991). Id. Second, if new and material evidence has been presented, immediately upon reopening the claim, VA must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Id. Third, if the claim is well grounded, VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id. Since the April 1954 rating decision, the appellant has submitted duplicate medical records, duplicate service medical records, his contentions, VA medical records, which establish evidence of obstructive disease on an August 1997 pulmonary function test, and a private physician's statement. The appellant has asserted that during service, he was driving a jeep, which left the road and landed in a "dead rice field." He stated that the rice field was full of empty barrels and a terrible smell and that he was bogged down in this mud up to his waist. He stated that it was not until several hours later that he was able to clean the mud off of his body and that he noticed the next day that his nose, throat, and stomach felt terrible and that he was hospitalized with pneumonia soon thereafter. In the June 1998 statement, Dr. Jeffery D. Floyd stated that he had reviewed the appellant's medical records and that the appellant had reported to him that he had been involved in a jeep accident that exposed his lungs to some chemical that resulted in him being hospitalized with pneumonia in service. He further stated the following: I have been asked to speculate as to whether [the appellant's] chronic obstructive pulmonary disease could have been accelerated by the exposures he underwent during active duty. I feel this is a plausible sequence of events from the information I have received. The first part of the test is for VA to determine if the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a). The Board has determined that the appellant has not presented evidence which is so significant that it must be considered in order to fairly decide the merits of the claim. See id. The reasons for this determination are explained below. The service medical records and some of the VA medical records are duplicative of that which was before the RO in April 1954, and thus would not constitute new and material evidence. See 38 C.F.R. § 3.156(a). Additionally, many of the VA medical records are not relevant to the appellant's petition to reopen the claim for service connection for pulmonary tuberculosis, and thus would also not constitute new and material evidence. See id. The appellant's assertions that he developed a lung disorder in service are basically the same assertions he made at the time of the April 1954 rating decision, and thus such assertions are cumulative and redundant of that which was before the RO previously and would not constitute new and material evidence. 38 C.F.R. § 3.156(a); see Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Finally, the Board finds that the Dr. Floyd's June 1998 statement does not serve to reopen the appellant's claim for service connection for pulmonary tuberculosis. Specifically, Dr. Floyd stated that he was asked to "speculate" as to whether the appellant's chronic obstructive pulmonary disease "could" have been accelerated by the exposure he underwent during active duty. Dr. Floyd's response to whether the appellant's chronic obstructive pulmonary disease "could" have been accelerated by the exposure he underwent during active duty was that it was a "plausible sequence of events." The Board finds that even accepting Dr. Floyd's statement as true, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), it cannot serve to reopen the claim for service connection for pulmonary tuberculosis. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical opinion which stated that the veteran's death "could" have been precipitated by his time in a prisoner of war camp was too speculative to provide the degree of certainty required for medical nexus evidence) citing Sacks v. West, 11 Vet. App. 314 (1998). The Board is aware that the issue before the United States Court of Appeals for Veterans Claims (the Court) in the Bloom case was a claim for service connection, as opposed to a petition to reopen; however, it finds that Bloom is equally applicable to a petition to reopen a previously denied claim. Additionally, it must be noted that Dr. Floyd stated only that the "sequence of events" was plausible. The Board finds that his statement is too speculative to provide a basis for reopening the claim for service connection for pulmonary tuberculosis. Thus, the Board has determined that this evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a). Service connection was previously denied for pulmonary tuberculosis because it had been determined to have preexisted service and had not been aggravated beyond the natural progress of the disease process during service. Since the April 1954 determination, the appellant has presented no competent evidence that pulmonary tuberculosis increased in severity beyond the natural progress of the disease process or that he incurred pulmonary tuberculosis while in service. Therefore, the appellant has presented no new facts and no new factual basis for considering the claim for service connection for pulmonary tuberculosis. Thus, the appellant has not submitted any evidence which is so significant that it must be considered in order to fairly decide the merits of the claim. See id. Although the appellant has alleged that he incurred, as opposed to aggravated, pulmonary tuberculosis in service, he is not competent to make such an allegation. See Moray v. Brown, 5 Vet. App. 211 (1993) ("If lay assertions of medical causation will not suffice initially to establish a plausible, well-grounded claim [for service connection], it necessarily follows that such assertions cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108"). Thus, his statements cannot serve as a basis to reopen his claim for service connection for pulmonary tuberculosis. Although VA is obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of the kind of evidence needed to reopen a previously denied claim, see Graves v. Brown, 8 Vet. App. 522 (1996), this obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the RO adequately fulfilled its obligation under section 5103(a) with the issuance of the statement of the case in April 1998, which provided the law and regulations pertaining to new and material evidence. In this respect, it is not shown that the appellant has put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could reopen his claim on the basis of new and material evidence, notwithstanding the fact that he has been provided opportunities to do the same. Thus, no additional development action is warranted. See Wood v. Derwinski, 1 Vet. App. 190 (1991). II. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In making a claim for service connection, the appellant has 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) (West 1991). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for service connection generally requires medical evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also 38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Establishing direct service connection for a disability that was not clearly present in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Moreover, establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. at 81. The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit, 5 Vet. App. at 93. The Board has reviewed the evidence of record, and there is no competent evidence of a diagnosis of a thyroid disorder or a diagnosis of atrial fibrillation shown. Thus, the appellant has not submitted well-grounded claims for service connection for thyroid disorder or atrial fibrillation. See Caluza, 7 Vet. App. 498 . The Court has stated that "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau, 2 Vet. App. at 143-44. Because there is no competent evidence of current diagnoses of thyroid disorder and atrial fibrillation, the Board must deny the claims as not well grounded. Id. Although the appellant has stated that he thinks that he has a thyroid disorder and atrial fibrillation, he is a lay person, and he is not competent to make such a diagnosis. See Layno, 6 Vet. App. at 470; Espiritu, 2 Vet. App. at 494. The appellant's own, unsupported opinions do not give rise to well-grounded claims. Although the VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim when it is determined to be not well grounded, it may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Here, VA fulfilled its obligation under section 5103(a) by issuing a statement of the case in April 1998. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration); Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's duty is just what it states, a duty to assist, not a duty to prove a claim). ORDER The petition to reopen the claim for service connection for pulmonary tuberculosis, now claimed as chronic obstructive pulmonary disease, is denied. Service connection for thyroid disorder is denied. Service connection for atrial fibrillation is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals