Citation Nr: 0000347 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-32 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for residuals of a bullet wound to the left side of the body. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a kidney condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran had recognized guerrilla service from January to July 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, that denied reopening the claim for service connection of residuals of a bullet wound to the left side of the body and service connection for hypertension and a kidney condition. Effective March 1, 1999, the United States Court of Veterans Appeals changed its name to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). FINDINGS OF FACT 1. By an August 1990 rating decision, the RO denied service connection for a bullet wound to the left side of the body on the basis that the official records showed no evidence that the injury was claimed, treated, or diagnosed during service. The veteran was notified of the adverse decision and did not file an appeal. 2. Evidence added to the record since the August 1990 rating decision, to include private medical records and statements from the veteran, does not bear directly and substantially upon the subject matter now under consideration (i.e., whether the veteran incurred a bullet wound in-service), and is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. Hypertension was not present during service; there is no continuity of symptomatology for hypertension after service; and hypertension was not manifest to a compensable degree within one year after service. 4. The claim of service connection for a kidney condition is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The evidence received since the August 1990 RO decision, which denied the veteran's claim of entitlement to service connection for residuals of a bullet wound to the left side of the body, is not new and material; that determination is final, and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302 (1999). 2. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 3. The claim of entitlement to service connection for a kidney condition is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that all of his conditions were aggravated within one year after his separation from service. Factual Background The Affidavit for Philippine Army Service and the Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement both dated in March 1947 are silent as regards significant disease, wounds, and injuries. The veteran's examination reflects no abnormal findings. The blood pressure reading was 108/66 and his pulse was 80 to 110 sitting and immediately after exercise, respectively. Medical evidence from Dr. E. Banaag for the period from April 1992 to April 1997 reflects that the veteran was evaluated and treated for allergic rhinitis, cephalalgia, posterior cervical strain/fibromyalgia, hypertension, bradycardia, coronary artery disease, arteriosclerosis, angina, hyperuricemia, degenerative joint disease, and gouty arthritis. In April 1992, the veteran's blood pressure was 120/86 and 160/90. In particular, the records reflect an abnormal stress echocardiogram in December 1993. A January 1995 entry reflects non-compliant with medications, blood pressure elevated no chest pain, except on exertion relieved by rest and no palpitations. The diagnoses were hypertension, rule out angina, and gouty arthritis. A renal ultrasound dated in February 1996 reflects cholelithiasis and no hydronephrosis. An October 1996 blood pressure reading was 160/80. At that time, the veteran denied chest pain or shortness of breath. The April 1997 entry reflects major joint pain if walking and no chest pain or shortness of breath. The blood pressure reading was 200/90. Laboratory reports from the Azusa Medical Laboratory, Inc., dated in February 1996, are noted. Private medical records from Glendale Adventist Medical Center dated in December 1993 reflect a diagnosis of coronary artery. The attending physician was Dr. Aleman. In general, the record reflects that the veteran began experiencing angina about one year earlier with most of [the angina] relieved by rest until recently. He experienced angina on the stress echocardiogram at 3 minutes of exercise with the study terminated soon thereafter due to the severity of the angina. The record reflects that the veteran had surgery in the past for nephrolithiasis. The history and physical relates a family history of hypertension and heart disease, and that the veteran has longstanding hypertension with angina pectoris that is unresponsive to medical management. Certification from Dr. Santa Maria dated in July 1996 reflects that the then 68 years old veteran had been under his care from 1946 to 1957 off and on for the following debilitating diseases: hypertension with a blood pressure reading of 200/110; enlargement of the heart; malaria; and dysentery. The veteran indicated on a VA Form 21-4142 dated in October 1996 that Drs. Luna and Torechante treated him in 1945 and that they were deceased. It is noted that there was no indication that the heirs of these physicians had the clinical records necessary to support the veteran's claim. The report from Dr. E. Aleman dated in November 1996 reflects that the veteran had experienced angina during his trips to the Philippines. The veteran had at least two treadmills, at which time, he experienced angina with exercise. He was admitted as an outpatient for coronary angiography, at which time, a new lesion in the ramus intermedius was noted with significant stenosis. A report from Dr. P. Estebal dated in August 1998 reflects that the veteran sought consultation with the undersigned for the first time for midsternal chest discomfort and shortness of breath of days duration with no precipitating or aggravating factors. Other complaints presented were pain and difficulty of movement of the knee joint, sole of the feet, and shoulder joints. The physical examination showed a blood pressure reading of 120/70 on two occasions and bradycardia of 48 beats per minute. The veteran's past medical history reflects hypertension and gout. A coronary angiography was done in Los Angeles, California in 1996 for angina. It was noted that the veteran had a new lesion in the ramus intermedius that was of significant stenosis. The final diagnoses included mild to moderate hypertensive heart disease; gouty arthritis; and bronchitis and senile emphysema. I. Finality By an August 1990 rating decision, the RO denied service connection for bullet wound to the left side of the body on the basis that the official records dated in March 1947 show no evidence that the injury was claimed, treated, or diagnosed during service. The veteran did not appeal the decision. See 38 U.S.C.A. §§ 7105(a), (b)(1) (West 1991); 38 C.F.R. §§ 20.200, 20.302(a) (1999). Therefore, the August 1990 rating decision became final when the veteran did not file a notice of disagreement within one year of the date the notice of the unfavorable determination was mailed. See 38 U.S.C.A. § 7105(c) (West 1991). Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Board] shall reopen the claim and review the former disposition of the claim." Therefore, once a RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by the VA. See 38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 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 or 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. See 38 C.F.R. § 3.156(a) (1999). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a three-step analysis. See Winters v. West, 12 Vet. App. 203, (1999) (explaining the holding in Elkins v. West, 12 Vet. App. 209 (1999)). First, the Board must determine whether the veteran has submitted new and material evidence under 38 C.F.R. § 3.156(a). If the Board determines that the submitted evidence is not new and material, then the claim cannot be reopened. Second, if new and material evidence has been presented, then immediately upon reopening the claim the Board must determine whether, based on all the evidence of record in support of the claim, presuming the credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well-grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well-grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Winters and Elkins, both supra; see also Manio v. Derwinski, 1 Vet. App. 140, 145-46 (1991). In relevant part, the evidence of record at the time of the August 1990 RO decision is summarized as follows: The veteran asserted in his application for compensation or pension dated in March 1990 that he sustained bullet wounds to his left side in 1946. He also asserts that he was treated by Dr. Torechante for these wounds from 1946 to 1984. As noted above, official records are silent as regards incurrence or treatment of a bullet wound to the left side of the body. The Court has held that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. See Evans v. Brown, 9 Vet. App. at 284; see also Hickson v. West, 12 Vet. App. 247 (1999) (VA must review evidence since the last final disallowance). Accordingly, evidence associated with the claims file subsequent to the August 1990 RO decision which denied the veteran's claim for service connection of a bullet wound to the left side of the body on the basis that official records dated in March 1947 did not show that the injury was claimed, treated, or diagnosed during service include statements and private medical records of Drs. Banaag, Aleman, and Santa Maria together with some hospital reports and the veteran's continuing assertions of entitlement. Evidence is considered to be "new" if it was not previously submitted to agency decision-makers and it is not cumulative or redundant. The evidence is "material" if it bears directly and substantially upon the specific matter under consideration and, by itself or in connection with evidence previously considered, it is so significant that it must be considered in order to fairly decide the merits of the claim. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156. New evidence may be found to be material if it provides "a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." See Elkins v. West, 12 Vet. App. 209 (1999). The Board notes that in Evans v. West, 12 Vet. App. 22 (1998), the Court stated that as a result of Hodge, the determination of whether new evidence was sufficiently material is a "fact-specific determination." Id. at 28. Accordingly, the Court held that such a determination was to be reviewed under a deferential standard of review, which is the clearly erroneous standard. See Elkins, at 209. According to the law, service connection may be granted for a disability that was incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Therefore, the determinative issue is whether the veteran incurred a bullet wound to the left side of his body in service and, if so, whether there are any residuals that are productive of a current disability. If there is, then there must be a link established by medical evidence that has not been previously considered. As noted above, the veteran reported that Drs. Luna and Torechante treated him in 1945 and that these physicians were deceased. The private medical records taken together with the hospital records are silent as regards evaluation, treatment, diagnosis, or service incurrence of a bullet wound to the left side of the body. The only record which actually addresses treatment during the one year presumptive period following service is the medical certificate submitted by Dr. Santa Maria dated in July 1996 which reflects that the then 68 years old veteran had been under his care from 1946 to 1957 off and on. The Board notes that the certificate does not refer to the evaluation, treatment, or diagnosis of residuals of a bullet wound to the left side of the body. The clinical evidence received since the August 1990 rating decision, when reviewed in connection with evidence already of record, does not support the veteran's allegation that a bullet wound was incurred in-service or bear a current diagnosis or treatment for residuals of a bullet wound that has been related to service. The Board acknowledges the veteran's assertions that he sustained a bullet wound to the left side of his body in service. While the veteran is competent to present lay evidence as to the events he observed and to the symptoms he experienced, Falzone v. Brown, 8 Vet. App. 398, 405 (1995), his lay assumptions regarding the relationship between various events and the development of various medical disorders are outside the scope of his competence, and cannot serve as a basis for reopening the claim. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (citing Justus v. Principi, 3 Vet. App. 510, 513 (1992) (Statements that are not competent are insufficient for purposes of reopening a claim)). Because the evidence submitted since the RO rendered the August 1990 decision, when viewed either alone or in conjunction with the other evidence of record, does not tend to indicate that the veteran sustained a bullet wound to the left side of his body, or that there are any residuals thereof, it is not new and is merely cumulative and redundant, and has no significant effect upon the facts previously considered. As such, it is not new and material as contemplated by 38 C.F.R. § 3.156(a), and provides no basis to reopen the claim of service connection for a bullet wound to the left side of the body. See 38 U.S.C.A. § 5108. II. Service Connection The veteran asserts that hypertension and a kidney connection are related to his military service. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). If the disorder is manifest to a degree of 10 percent within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). More than just an allegation is required to present a well-grounded claim; the veteran must submit supporting evidence. See Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Generally, a well-grounded claim for service connection requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 489, 504, 506 (1995); see also Epps v. Gober 126 F.3d 1464, 1468 (Fed. Cir. 1997) (Expressly adopting definition of well-grounded claim set forth in Caluza, supra). The second and third Caluza elements can be satisfied under 38 C.F.R. 3.303(b) by (a) evidence that the condition was "noted" during service or during an applicable presumptive 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, 495-97 (1997). Where a chronic disease is shown in service, manifestations of the condition at any later date, however remote, are service-connected unless clearly attributable to an intercurrent cause. Continuity of symptoms is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether a claim is well- grounded, the credibility of the evidence in support of the claim must be presumed. See Robinette v Brown, 8 Vet. App. 69, 75 (1995). A. Hypertension At the outset, the Board finds that this claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran is found to have presented a claim that is not inherently implausible. The Board acknowledges the veteran's assertions that hypertension was incurred in or aggravated within a year of separating from service. However, official records regarding his service to include a physical examination are silent as to the treatment or diagnosis of hypertension or a kidney condition. Further, there is no evidence immediately post service to reflect that hypertension was treated within a year of separating from service. See 38 C.F.R. §§ 3.307, 3.309. Specifically, the official service department records reflect that the veteran's blood pressure was 108/66 and that his pulse was 80 to 110 at rest and immediately after exercise, respectively. All organ systems were evaluated as normal. The veteran asserted in 1990 that he received medical treatment from Dr. Torechante in 1946. Thereafter, in October 1996, the veteran reported receiving medical treatment from Dr. Luna and Dr. Torechante in 1945. That statement reflects that these physicians are deceased. Therefore, for the purpose of this decision, those treatment records do not exist for the period immediately following service to establish onset or continuity of symptomatology. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The earliest record purporting to treat hypertension is a medical certificate from Dr. Santa Maria dated in July 1996. As noted above, that record reflects medical treatment for hypertension, an enlarged heart, malaria, and dysentery between 1946 and 1957. In reviewing this evidence to make a determination of whether the claim is well-grounded, it was accepted as credible. However, once a claim is well- grounded, the Board must then assess whether the evidence in support of that claim is credible. See Robinette v. Brown, 7 Vet. App. 69. Even if Dr. Santa Maria's statement was credible, the fact remains that it did not specify when the veteran was first shown to have hypertension. Thus, the Board concludes that this evidence is not sufficient to establish service connection for hypertension, on a presumptive basis, under the provisions of 38 C.F.R. § 3.307 and § 3.309. The Board takes note of a Memorandum of File regarding "Credibility of Evidence" which indicates that the RO investigated Dr. Santa Maria and concluded that his statements were not substantiated as his medical records were destroyed by fire in 1983. The Board also points out that in Cruzada v. Gober, U.S. Vet. App. No. 96-1132 (Sep. 16, 1997), a non-precedential memorandum decision, a judge for the Court held that the Board's determination that Dr. Santa Maria's certification is not credible has a plausible basis in the record. In Alcaide v. Gober, U.S. Vet. App. No. 96-1259 (Sep. 16, 1997), a non-precedential memorandum decision, another judge of the Court affirmed a Board decision in which the Board's determined that Dr. Santa Maria's statements were minimally probative because they were based upon the doctor's memory of events occurring more than 25 years ago, and there was no clinical evidence to support the doctor's opinion. The circumstances in the Cruzada case were strikingly similar to those in the case at hand, wherein Dr. Santa Maria alleged that he had treated the veteran in question for many years for heart disease. The Court, in Cruzada, noted that Dr. Santa Maria based his diagnosis in that case entirely on his recollection of events that occurred many years earlier--more than 40 years, without the benefit of clinical records to consult, and yet, in spite of that, he was able to recall very specific information (i.e., the exact blood pressure reading that he supposedly recorded when examining the veteran more than 40 years earlier). The Court held that his purported ability to recall that level of information under those circumstances was beyond what could reasonably be expected and, therefore, was speculative and insufficient to serve as a basis for service connection. The Board believes that this case presents similar circumstances and that a similar conclusion is warranted. Therefore, Dr. Santa Maria's statement is based on a recollection of events that occurred many years ago. As Dr. Santa Maria cannot provide clinical records contemporaneous to the treatment to support a finding that the veteran developed hypertension coincident to service or within the one year presumptive period, that evidence is not competent evidence on the issue of service connection. There is no other clinical evidence in the file which would resurrect or support the statements of Dr. Santa Maria The only other evidence of record that links the veteran's currently diagnosed hypertension to service are the veteran's own statements. The veteran as a lay witness is not competent to provide a medical opinion relating his present disability to service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the preponderance of evidence shows that hypertension was not manifest during the veteran's period of service or within one year following his separation from service, and there is no credible evidence to establish that the hypertension is related to any incident of service. Accordingly, because the preponderance of the evidence does not indicate hypertension during the veteran's period of service, or a continuity of treatment from the time of the purported onset, his claim for service connection must be denied. The Board recognizes that the claim for service connection for hypertension is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran's claim as not well-grounded, where the Board has concluded that the claim is well-grounded and proceeded to decide the claim on the merits. In this case, the veteran and his representative were provided notice of the evidence required for well-grounded claims to warrant the grant of service connection. Therefore, based on the above, the veteran would not be prejudiced if the Board addresses the merits of his claim. See Meyer v. Brown, 9 Vet. App. 425, 432 (1996); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Kidney Condition As noted previously, service connection may be granted for disease or disability incurred in or aggravated coincident to military service. See 38 U.S.C.A. §§ 1110, 1131. In accordance with the holdings in Caluza and Epps, both supra, a well-grounded claim for service connection requires medical or lay evidence in certain circumstances of incurrence in- service and a nexus between a currently diagnosed disability and the veteran's military service. The Board acknowledges the veteran's assertions that a kidney condition was incurred in or aggravated within a year of separating from service. However, official records regarding his service to include a physical examination are silent as to the treatment or diagnosis of a kidney condition. As a matter of fact, all organ systems were evaluated as normal on the 1947 physical examination. Further, there is no evidence immediately post service to reflect that a kidney condition was treated within a year of separating from service. See 38 C.F.R. §§ 3.307, 3.309. The Board does observe that entries remote to service reflect rule out hydronephrosis and a history of nephrolithiasis and do not establish a nexus to service. Further, the records do not reflect a currently diagnosed kidney condition. The only evidence of record that links a kidney condition to service are the veteran's own statements. The veteran as a lay witness is not competent to provide a medical opinion relating a disability to service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Because the veteran cannot meet his initial burden by relying on his own opinion as to medical matters and he has submitted no competent clinical evidence that tends to establish a current diagnosis of a kidney condition or symptoms thereof that are related to his period of service, the claim for service connection for a kidney condition is not well-grounded and must be denied. See Caluza v. Brown, 7 Vet. App. 489. III. Other Considerations The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for the claims of service connection for hypertension and a kidney condition, as well as to reopen his claim for residuals of a bullet wound to the left side of the body. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette, 8 Vet. App. 69, 77-78 (1995). As regards the claims for service connection of a kidney condition and residuals of a bullet wound to the left side of the body, the veteran's burden to submit evidence sufficient to establish a well-grounded claim is the veteran's alone and is not relieved by the benefit of the doubt provision. See 38 U.S.C.A. § 5107(b); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER New and material evidence not having been submitted to reopen the claim of entitlement to service connection for residuals of a bullet wound to the left side of the body, the appeal is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a kidney condition is denied. James R. Siegel Acting Member, Board of Veterans' Appeals