BVA9500381 DOCKET NO. 93-14 984 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether an October 1953 rating decision clearly and unmistakably erred in denying service connection for residuals of contusion to the right forearm and arm. 2. Whether new and material evidence has been received to reopen a claim for service connection for residuals of contusion to the right forearm and arm. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from March 1944 to June 1946. An October 1953 rating decision denied service connection for residuals of contusion for the right forearm and arm as not found. The veteran was notified of this decision by a letter dated October 1953. He did not appeal the decision within one year thereafter. The initial issues for appellate review included service connection for neck and left knee disabilities; however, at his personal hearing, the veteran withdrew these issues from appellate review. He also added the issue of clear and unmistakable error (CUE) in the October 1953 rating decision. (Transcript of hearing at pages 6-7 or t. 6-7.) Additional treatment records were received after the most recent supplemental statement of the case (SSOC), but the case will not be remanded for an additional SSOC, as these records are duplicates of the records available prior to the most recent SSOC, with the exception of an August 1993 radiologic consultation request. Although the request is additional evidence, it is merely cumulative of and consistent with previously submitted evidence and is thus not considered pertinent. 38 C.F.R. §§ 19.31, 20.1304(c) (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right arm and forearm were injured in an accident in service wherein a 250 pound bomb fell on him, the residuals of which contusion persist to this day. He asserts that it was clear and unmistakable error for the October 1953 rating decision not to grant service connection for said residuals, as the service records are unambiguous in stating that the accident as described by the veteran did occur. The veteran's representative asserts in a September 1994 statement that the October 1953 rating decision erred in that the decision was reached without benefit of a Department of Veterans Affairs (VA) medical examination. In the alternative, the veteran has testified at two personal hearings, one of which was conducted concomitant with this appeal, that the in-service contusion resulted in various residuals. DECISION OF THE BOARD The Board of Veterans' Appeals (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 files. 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 October 1953 rating decision that denied service connection for residuals of contusion to the right forearm and arm contained no clear and unmistakable error, and that new and material evidence has not been submitted to reopen the claim. FINDINGS OF FACT 1. The veteran's claim for service connection for residuals of contusion to the right forearm and arm was denied by an unappealed rating decision in October 1953. 2. Additional evidence received since then is consistent with the reasons for the prior denial and is not so significant that it must be considered in order to decide the merits of the claim. 3. The October 1953 rating decision which denied service connection for residuals of contusion to the right forearm and arm contained no obvious, nondebatable error of fact or law, which, if corrected, would have resulted in the allowance of service connection for this disorder, or for any other residuals of the injury involving a falling bomb in service. CONCLUSIONS OF LAW 1. The October 1953 rating decision which denied service connection for residuals of contusion to the right forearm and arm became final; evidence received since then is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5107, 5108 (West 1991); Veterans Regulations No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957; 38 C.F.R. § 3.156 (1993). 2. There was no clear and unmistakable error in the October 1953 rating decision which denied service connection for residuals of contusion to the right forearm and arm, and the rating decision remains final. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.105 (1993); R and PR 1063(A), effective May 13, 1947. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claims are well grounded and adequately developed. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. The regulations applicable to the 1953 rating decision at issue in this case are as follows: Service connection connotes many factors. In general and fundamentally it means establishment of the incurrence of injury or disease or aggravation of a pre- existing injury or disease resulting in disability coincidentally with the period of active military or naval service. This may be accomplished by the presentation of affirmative facts showing the inception or aggravation of an injury or disease during active service or through the operation of statutory or regulatory presumptions. Determinations as to service connection, in general, should be based on review of the entire evidence of record in the individual case, with due consideration extended to the defined and consistently applied policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts shown in each case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service connection, such doubt will be resolved in favor of the veteran. Particular consideration should be accorded combat duty and other hardships of service. R and PR 1063(A), effective May 13, 1947. The law grants a period of 1 year from the date of the notice of the result of the initial determination for the filing of an application for review on appeal; otherwise, that decision becomes final and is not subject to revision in the absence of new and material evidence or clear and unmistakable error. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957. See also Manio v. Derwinski, 1 Vet.App. 140 (1991). If new and material evidence has been received with respect to a claim which has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). The United States Court of Veterans Appeals (Court) held, in the case of Russell v. Principi, 3 Vet.App. 310 (1992), that a clear and unmistakable error exists when, considering the applicable laws and regulations and the evidence that was in the claims file at the time of the decision in question, there was a mistake which, if righted, would have changed the outcome of the decision. The mistake must be obvious or nondebatable. In the Russell case, the Board erred by its finding that there was no evidence that a veteran had defective hearing in service. On the contrary, an audiometry test conducted in service showed a 13 percent hearing loss in one ear and a 14.7 percent hearing loss in the other ear. As the results of this hearing test were not made known to the veteran because of the Board's inaccurate finding, the veteran's appeal of that decision was hampered. Although the Court found that this was an obvious or nondebatable error, the case was remanded to the Board to determine whether it was "clear and unmistakable," that is, whether, on the full evidence before the regional office (RO) at the time of its decision, the evidence established that a correction of the error would have changed the outcome, that is, whether service connection would have been granted had the audiometry report been considered. In the instant case, the evidence available at the time of the October 1953 rating decision included service medical records. The service entrance examination in March 1944 revealed no pertinent abnormality. In December 1944, the veteran was treated for a contusion of the right forearm and arm, moderately severe, as a result of a blow from a 250 pound bomb which fell on his right elbow during his work at an arsenal. An X-ray was negative for fracture. An orthopedic consultant reviewed the case and found that hot packs would entirely relieve the symptoms. After treatment, the veteran's symptoms were described as "subsided" and he was returned to duty. The entire treatment lasted from the day of the incident, December 10, 1944, to release to duty on December 20, 1944. The veteran was also concurrently being treated for acute nasopharyngitis, catarrhal. At the service separation medical examination in June 1946, the injuries listed as incurred in service included chronic strain of the right elbow, noted to have been incurred in October 1945. However, the examiner responded "no" to the question whether any physical defects were present as a result thereof, and the musculoskeletal defects were described as "none." In June 1953, the veteran filed a claim for compensation for the right arm, and advised that he had been treated in 1949 by Dr. Mack Daniels in Alto, Texas, for pain and swelling, and in 1952 by Dr. Due Bose for aching and tightness. He added that [redacted], of Alto, Texas, knew facts about his claimed disability. Accordingly, the RO asked Dr. Daniels and Mr. [redacted] to provide information relevant to the claim. However, no response to these requests was received. The veteran was also advised, in August 1953, to submit evidence showing the continuity of his right arm symptoms after service and was provided a description of acceptable evidence. In September 1953, he was advised that due to his lack of response, action would be taken on his claim without additional development. In October 1953, the RO found that the service medical records did not evidence any residuals of contusion of the right forearm and arm after completion of treatment for same, and, noting that the veteran had failed to respond to requests for evidence of continuity of symptoms, found that service connection was not warranted. Evidence received since the October 1953 rating decision includes treatment records. During VA hospitalization in September 1955, there was no crepitus of joints of the extremities, nor any clubbing, edema, or neurological deficit. There was an old scar on the left shoulder. A September 1966 statement from a private doctor shows that the veteran was treated for complaints of pain in the shoulders and arms which the veteran reported as beginning during service. Symptoms included pain in the upper back, both shoulders and down the right arm into the hand. The veteran complained of numbness in the radial nerve area. The physical findings and diagnoses included supra-acromial bursitis and median nerve neuritis. VA hospitalization in December 1966 failed to identify any pathology to explain complaints of radicular pain in the right cervical region. VA examination in May 1967 failed to identify any such pathology as well; the veteran was noted to have been in superb physical condition. VA examination in April 1973 resulted in a diagnosis of degenerative arthritis in the cervical spine. A VA outpatient treatment record which is undated but appears to have been created in April 1983 reflects complaints of weakness in both arms, not attributable to organic findings. November 1983 VA examination showed that the veteran had osteoarthritis of the neck with limited range of motion. He underwent VA cervical laminectomy with cervical fusion in January 1984, and evacuation of hematoma and partial laminectomy of the remainder of C2-7 later that month. An April 1984 VA examination for house-bound status showed him to have numbness in both hands. VA right elbow X-ray in September 1987 showed degenerative joint disease (DJD) with spurring about the epicondylar areas possibly due to trauma or epicondylitis, and spurring of the olecranon of the ulna. Right wrist X-rays at that time showed minor degenerative changes with apparent surgical removal or absence of the triquetrum. The ulnar styloid process was abbreviated. There was mild DJD of the carpometacarpal articulations. A Memorial Medical Center of East Texas record of March 1991 shows that the veteran was seen with a history of an old injury to the right shoulder in the Army, then a car accident, with pain increasing ever since in the anterior area of the right acromioclavicular (AC). An X-ray showed DJD in the right AC joint. In February and March 1991, he received VA outpatient treatment for right shoulder and arm pain and neck pain and gave a history of cervical disc disease. At his personal hearing in June 1991, the veteran testified that a 250 pound bomb fell and hit him in the neck and back in service (t. at 2.) This caused pain in his neck extending all the way down to his right hand. (t. 3.) In August 1991, the veteran underwent VA hospitalization for, in part, right shoulder pain with an abrasion secondary to a fall produced by left knee arthritis. A December 1991 letter from the veteran indicates that he did not understand appellate procedure at the time of his original claim and that the doctors he saw then "are no longer with us." In February 1992, VA outpatient treatment of the right elbow revealed X-ray impressions of a tiny spur on the olecranon with an otherwise normal elbow. In March 1992, the veteran received VA treatment for right shoulder and elbow pain after a fall on his right side 2 days before. The assessment was right shoulder contusion. At his personal hearing in March 1992, the veteran testified that the service records erroneously referred to his right upper extremity contusion as his right forearm and arm, and that his right shoulder was the source of the pain in service. (t. at 2- 3.) He added that this had pained him and required treatment since service. He recalled the names of several doctors who he had seen after service, but felt that they were deceased or had moved away. He could not recall seeing Dr. Daniels or any doctor in Alto, Texas. (t. 4.) A car accident in December 1990 had exacerbated the right shoulder pain. Treatment following this accident had indicated that the right shoulder pathology was from long ago. (t. 5-6.) VA outpatient treatment was rendered in April 1992 for cervical spinal status post fusion and osteoarthritis of the right shoulder. I. Clear and Unmistakable Error in the 1953 Rating Decision The Court has held that when a claim of clear and unmistakable error is stated: It must always be remembered that CUE is a very specific and rare kind of 'error.' It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993); en banc review denied, February 2, 1994 (emphasis in original) (citation omitted). In the Fugo case, the Court initially noted that "there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger." Fugo, 6 Vet.App. at 44 (citations omitted). In that case, the appellant had alleged that evidence favorable to his case was ignored, although the Court found that all such evidence had been considered. The Court held that it was difficult to see how either a "failure in 'duty to assist' or failure to give reasons or bases could ever be CUE; but if so claimed, the claimant must state why it is CUE and present a compelling case that the result would have been manifestly different." Fugo, 6 Vet.App. at 44. The Court found that the appellant did not reasonably raise the issue of CUE and, therefore, there was no requirement that the Board address the issue. Fugo, 6 Vet.App. at 45. We have considered the allegation that the RO in 1953 committed clear and unmistakable error in not granting service connection for residuals of contusion to the right forearm and arm. The 1953 rating decision, however, gives no indication that the RO ignored evidence of the service accident, and instead shows that the RO sought additional evidence, although the veteran failed to cooperate in the development of his claim. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) ("duty to assist is not always a one-way street"). We appreciate that at service entrance, the right arm was not symptomatic, whereas at separation a chronic right elbow strain was reported, with physical examination ultimately being negative for findings. Considering that the veteran was found to have no physical defect and that the musculoskeletal defects were "none," however, we find no clear and unmistakable error in the RO's failure to grant service connection. We are also unable to find, as the representative alleges, that the RO in 1953 committed CUE in failing to grant the veteran a VA examination. An alleged failure in "duty to assist" by not giving an examination must be accompanied by an explanation as to why it is CUE and present a compelling case that the result would have been manifestly different. See Fugo, 6 Vet.App. at 44. Such explanation is not provided here; therefore, this allegation of CUE must fail. In the instant case, therefore, the veteran's contention regarding clear and unmistakable error is essentially an attempt to obtain a reweighing and revaluation of evidence which was previously before the RO, and, thus, does not constitute a valid claim of clear and unmistakable error. See Fugo, 6 Vet.App. at 44. While we sympathize with the veteran that he subjectively was unaware of appellate procedures in 1953, despite the October 1953 letter which apprised him of same, this does not indicate CUE in the October 1953 rating decision. As there was a plausible basis in the record to deny service connection for the claimed residuals of contusion to the right forearm and arm in 1953, and we detect no obvious or nondebatable error in the 1953 rating decision, we find that the decision contains no clear and unmistakable error. II. New and Material Evidence The 1953 rating decision, as noted above, denied service connection on the basis that the claimed disability was not found. The evidence received since the 1953 rating decision relevant to the right arm includes documents which indicate that, many years after service separation, the veteran was shown to have bursitis and median nerve neuritis, and he developed degenerative joint disease of the neck (first shown in April 1973). Although on treatment the veteran reported a history of injury during service, the disorders have never been medically attributed by an examiner to trauma or other incident during service. Such evidence also indicates that even later, in September 1987, DJD with spurring of the right elbow and wrist were discerned on X-ray. The right elbow was found to have only a tiny spur, however, on X-ray in February 1992. DJD of the right shoulder was diagnosed in March 1991. As no medical evidence links these developments to service or the service years, we are unable to find that these records are so significant that they must be considered in order to decide the merits of the claim. The mere history in the March 1991 or other post-service medical record of an "old injury" having been exacerbated is not adequately probative of the residuals of the 1953 contusion as to permit the reopening of the claim. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993). Although the September 1987 elbow X-ray suggested one possibility of several that the DJD may or may not be trauma-induced, the mere possibility of a connection between the service contusion and the current tiny right elbow spur is speculative, and, thus, would not be sufficient to rise to the level of new and material evidence. Such evidence is not even sufficient to make a claim well-grounded. See Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). "The threshold of plausibility to make a claim well grounded is 'rather low', lower than the new-and-material evidence threshold which a claimant must cross in order to have a previously disallowed claim reopened and readjudicated." Robinette v. Brown, No. 93-985, slip op. at 10 (U.S. Vet. App. Sept. 12, 1994), reconsideration granted in part (Oct. 21, 1994) (per curiam) (citation omitted). Other evidence received since the 1953 rating decision includes duplicate copies of various service medical records already of record in 1953. The veteran further submitted his contentions and hearing testimony, as outlined herein above. The only element in this evidence not known in 1953 is his allegation that the contusion in service caused several current disabilities. This allegation is reiterated by testimony, albeit with some conflict between the June 1991 and the March 1992 hearings. However, the veteran, as a lay person, is not qualified to render a medical opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). His allegation of medical causality, in the absence of medical support therefor, is not, in itself, so significant that it must be considered in order to fairly decide the merits of the claim. Further, the service medical records expressly state that the contusion in service was to the right forearm and arm. For all of these reasons, we find that the evidence received since the 1953 rating decision is not new and material. "New and material" evidence is evidence which is not cumulative of previously submitted evidence and which, "when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence does not subject the 1953 rating decision to revision, and the 1953 rating decision remains final. ORDER As no clear and unmistakable error was present in the October 1953 rating decision which denied service connection for residuals of contusion to the right forearm and arm, and no new and material evidence has been received to reopen the claim, the rating decision is not reopened and remains final. The appeal is denied. M. SABULSKY 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.