Citation Nr: 0005582 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 97-30 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of head trauma. 2. Entitlement to service connection for residuals of head trauma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from December 1955 to April 1966. Service connection was denied for residuals of head trauma by a May 1995 rating decision, which became final after the appellant failed to file a notice of disagreement within one year after receiving notification of the decision from VA in May 1995. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). FINDINGS OF FACT 1. A May 1995 rating decision denied service connection for residuals of head trauma, and that decision became final when the appellant did not timely file an appeal from the decision after receiving notification thereof in May 1995. 2. The appellant has submitted significant evidence that must be considered in order to fairly decide the merits of the claim of entitlement to service connection for residuals of head trauma. 3. There is no competent evidence of a nexus between the appellant's current spondylosis and degenerative joint disease of the cervical spine and inservice disease or injury. CONCLUSIONS OF LAW 1. The evidence received by VA since the May 1995 rating decision is new and material, and the claim for service connection for residuals of head trauma is reopened. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303(d), 3.307, 3.309, 20.302(a) (1999). 2. The appellant has not submitted a well-grounded claim for service connection for residuals of head trauma. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that his current cervical spine disability, diagnosed as spondylosis and degenerative joint disease of the cervical spine, is related to head trauma he sustained when a tank lid fell and struck him in the head during his period of active military service. He asserts that a previous and final decision by the RO, which denied the claim, should be reopened because he has submitted evidence since that decision, which is both new and material. A claim for service connection for residuals of head trauma was previously denied by a May 1995 rating decision that became final when the appellant did not file a timely appeal of the decision after receiving notification thereof in May 1995. Except as otherwise provided, when a claim becomes final after an unappealed rating decision, the claim may not be thereafter reopened. Should new and material evidence be presented or secured with respect to a claim that has been disallowed, the claim shall be reopened and reviewed as to all of the evidence of record. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 20.302(a). In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the United States Court of Appeals for Veterans Claims (Court) held that the process for reopening claims was a three-step process under the holding by United States Court of Appeals for the Federal Circuit (Federal Circuit) in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998): the Secretary must first determine whether new and material evidence has been presented, which under 38 C.F.R. § 3.156(a) means evidence not previously submitted to agency decision makers which satisfies the following requirements: it bears directly and substantially upon the specific matter under consideration; it is neither cumulative nor redundant; and, by itself or in connection with evidence previously assembled, it is so significant that it must be considered in order to fairly decide the merits of the claim; second, if new and material evidence has been presented, immediately upon reopening the Secretary must 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); and third, if the claim is well grounded, the Secretary must reopen the claim and "evaluate the merits of the veteran's claim in light of all the evidence, both old and new" after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999) (en banc). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been submitted, the Board must review all of the evidence submitted since the last final denial of a claim. Evans v. Brown, 9 Vet. App 273 (1996). In this case, the appellant's claim for service connection for residuals of head trauma was last finally denied by the May 1995 rating decision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. Additionally, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d). The evidence of record at the time of the May 1995 rating decision included the appellant's service medical records, which showed that he was treated in June 1964 for lacerations on the scalp and upper lip due to being struck in the head when a tank lid fell on his head. He was seen later in June 1964 for a complaint of headaches. His March 1966 discharge examination revealed normal findings for the head and neck, and there was no complaint or finding pertaining to any cervical spine disability or any residual of head trauma. Service connection was denied for residuals of head trauma by the May 1995 rating decision on the basis that the evidence did not show that the appellant had any residual of head trauma. The evidence submitted since the May 1995 rating decision includes VA medical records, dated in January 1997 and February 1997, showing treatment for cervical spine disability, diagnosed as muscle strain with arthritis in the cervical spine and as cervical spondylosis and degenerative joint disease of the cervical spine, respectively. An October 1998 medical statement from T. Paquin-Lazano, M.D., indicated that the appellant had minimal pain in his neck with full range of motion, and the diagnosis was cervical degenerative joint disease. A February 1999 medical report from D. J. Schulak, M.D., noted that the appellant complained of neck pain and recalled several injuries to his back in the mid 1960s, and that he had been told at a VA hospital that he had whiplash. The diagnosis listed by Dr. Schulak was cervical spondylosis without radiculopathy or myelopathy. Because the appellant's initial claim for service connection for residuals of head trauma was denied in May 1995 on the basis that residuals of head trauma were not shown, the Board finds that the evidence submitted since then is significant and must be considered in order to fairly decide the merits of the appellant's current claim for service connection for residuals of head trauma. The evidence is new because it demonstrates the presence of cervical spine disability, and it is material because it raises the question of whether such cervical spine disability is the residual of the head injury the appellant sustained in service. Accordingly, the Board reopens the claim of entitlement to service connection for residuals of head trauma on the basis that the appellant has submitted new and material evidence. 38 U.S.C.A. §§ 5107, 5108, 7105(c); 38 C.F.R. § 3.156. Because the Board has determined that the appellant's claim for service connection for residuals of head trauma is reopened, it must be reviewed under the second element of Winters, which is whether the claim is well grounded. Reviewing the claims file, the Board finds that the appellant's contentions and evidence submissions have been focused on the merits of his claim for service connection for residuals of head trauma, and that, therefore, he will not be prejudiced by a decision of the claim on the merits at this time. Bernard v. Brown, 4 Vet. App. 384 (1993). A claimant filing for VA benefits has the duty to submit evidence that must "justify a belief by a fair and impartial individual" that the claim is plausible, and, therefore, well grounded. 38 U.S.C.A. § 5107(a). A claim is not well grounded if the claimant fails to present such evidence. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the claimant must be accepted as true for the purpose of determining if a claim is well grounded, except where such assertions are inherently incredible or beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). For a claim of service connection to be well grounded, there must be competent evidence of current disability, of the incurrence or aggravation of a disease or injury during service, and of a nexus between the inservice injury or disease and the current disability. That is, an injury during service may be verified by competent medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis; and, where an opinion is used to link the current disorder to a cause or symptoms during service, a competent opinion of a medical professional is required. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has carefully reviewed the evidence of record to determine if there is a well-grounded claim for service connection for residuals of head trauma. The first element required to show a well-grounded claim is met because VA and private medical evidence, dated from 1997 to 1999, reveals that the appellant has cervical spine disability. The second element required for a well-grounded claim is also met because the appellant's service medical records show that he sustained head trauma in service. However, the third element for a well-grounded claim under Caluza is not met because the appellant has failed to show the required nexus between any current medical condition and any injury or disease in service. There is no medical evidence establishing a link between the current cervical spine disability and the appellant's active military service. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Franko v. Brown, 4 Vet. App. 502, 505 (1993). The Board also notes that the medical evidence demonstrates that the initial manifestation of arthritis in the cervical spine was more than 30 years after service. Medical diagnoses involve questions that are beyond the range of common knowledge and experience. Rather, they require the special knowledge and experience of a trained medical professional. Although statements and testimony regarding the appellant's claimed residuals of head trauma have been presented, the record does not show that a medical professional, with the training and expertise to provide clinical findings regarding any etiological relationship of the cervical spine disability to service have been submitted. Consequently, the lay statements and hearing testimony, while credible with regard to his subjective complaints and history, are not competent evidence for the purpose of showing a nexus between current complaints and service. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Based upon the foregoing, the Board concludes that the appellant has failed to meet his initial burden of presenting evidence that his claim of entitlement to service connection for residuals of head trauma is plausible or otherwise well grounded. Therefore, it must be denied. Where the veteran has not met his initial burden, VA has no duty to assist him in developing facts pertinent to his claim, including no duty to provide him with a medical examination. 38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). However, in the limited circumstances where a claim for benefits is incomplete, and references other known and existing evidence, VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application, and this duty must be based on the facts of each case. See Robinette v. Brown, 8 Vet. App. 69, 80 (1995). In this case, the RO substantially complied with this obligation in a August 1997 statement of the case. Unlike the situation in Robinette, the appellant has not put VA on notice of the existence of any specific evidence that, if submitted, could make this claim well grounded. Although the RO did not specifically state that it denied the appellant's claim for service connection for residuals of head trauma on the basis that it was not well grounded, the Board concludes that this error was not prejudicial to him. See Edenfield v. Brown, 8 Vet. App. 384 (1995). ORDER New and material evidence having been submitted with regard to a claim of entitlement to service connection for residuals of head trauma, the claim is reopened. The claim for service connection for residuals of head trauma is denied. M. W. GREENSTREET Member, Board of Veterans' Appeals