Citation Nr: 0001344 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 91-38 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for arteriosclerotic heart disease. 2. Entitlement to service connection for right lower extremity disorder, as secondary to a service-connected left lower extremity disability. 3. Entitlement to a temporary total evaluation, pursuant to 38 C.F.R. § 4.30, for a period of convalescence following VA hospitalization and surgery for a right lower extremity disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Helinski, Associate Counsel INTRODUCTION The veteran had active military service from May 1948 to July 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. FINDINGS OF FACT 1. A February 1990 BVA decision denied service connection for heart disease. 2. The evidence associated with the claims file subsequent to the February 1990 BVA decision is duplicative or cumulative of previously submitted materials and, either alone or in conjunction with evidence previously of record, is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for arteriosclerotic heart disease. 3. A right lower extremity disorder is not shown to be causally or etiologically related to the service-connected left lower extremity disability, or to an incident of the veteran's active military service. 4. Service connection has nor been established for a disorder of the right lower extremity. CONCLUSIONS OF LAW 1. The February 1990 BVA decision, which denied service connection for heart disease, is final. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 1991). 2. Evidence associated with the veteran's claims file subsequent to the February 1990 BVA decision is not new and material, and the veteran's claims for service connection for arteriosclerotic heart disease is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. A disorder of the right lower extremity was not incurred or aggravated during active military service, and is not proximately due to a service-connected disability of the left lower extremity. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (1999). 4. The requirements for assignment of a temporary total rating based on a period of convalescence following surgery for a right lower extremity disorder, have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that this matter was previously before the Board and remanded in January 1996 and February 1998 for additional development. The additional development has been completed, and the case is ready for appellate review. As a preliminary matter, the Board notes that the veteran claims that he developed arteriosclerotic heart disease, and a right lower extremity disorder, both as secondary to his service-connected left lower extremity disability. A review of the record reveals that precise condition of the left lower extremity, for which the veteran is service-connected, is as follows: multiple post left iliofemoral grafts, diminished left dorsalis pedis with lumbar sympathectomy laparotomy, insertion silicone sheet into abdomen, ischemia left leg, residuals of an injury. The foregoing disability resulted from an in-service injury, which occurred in February 1958. The veteran's service medical records reflect that the veteran sustained an injury to his left common and external iliac artery, when an airplane towbar pinned him against an airplane hanger door. This injury led to a clot, which required an aortofemoral bypass, and other related surgeries. For purposes of discussion in this appeal, the Board will refer to the foregoing disability simply as "left lower extremity disability." I. New and Material Evidence A review of the present appeal reveals that in a February 1990 decision, the BVA denied a claim for service connection for heart disease, on the basis that there was no evidence that the veteran developed heart disease during service, or during the first post-service year. Furthermore, the BVA found no evidence that the veteran's heart disease was caused by his service-connected left lower extremity disability. That BVA decision, like all BVA decisions, is a final decision. See 38 U.S.C.A. §§ 7103(a), 7104(b) (West 1991). In August 1990, the veteran submitted a claim to reopen his claims for service connection for a heart disorder. According to the law, if new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (1999). New and material evidence is evidence that was not previously of record, and which bears directly and substantially upon the specific matter under consideration. Such evidence must not be cumulative or redundant, and it must, either alone or in conjunction with evidence previously of record, be 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); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). If the Board determines that new and material evidence has been presented to reopen a finally denied claim, then immediately upon reopening the claim the Board must determine whether, based on all the evidence of record, and presuming the credibility of such evidence, the claim as reopened is well grounded. See Elkins v. West, 12 Vet. App. 209, 218-219 (1999). If the claim is well grounded, the Board must proceed to evaluate the merits of the claim, after ensuring that the duty to assist under 38 U.S.C.A. § 5107 has been satisfied. However, "a reopened claim is not necessarily a well grounded claim and, absent a well grounded claim, the adjudication process must come to a screeching halt despite reopening because a claim that is not well grounded cannot be allowed." Winters v. West, 12 Vet. App. 203, 206 (1999). The Board has reviewed all the evidence of record, and for the reasons and bases set forth below, concludes that new and material evidence has not been received to reopen the veteran's claim for service connection for a heart disorder, claimed as arteriosclerotic heart disease, and the appeal is denied. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). At the time of the February 1990 BVA decision, the evidence of record included the veteran's service medical records and various post-service VA and private medical records. Those records reflect the veteran's injury to his left lower extremity, as well as the many surgeries the veteran underwent as a result of that injury. Both at the time of the February 1990 BVA decision, and presently, the veteran claims that the severity of his left leg disability led to his development of heart disease, or arteriosclerosis. The Board reiterates that in order to reopen the veteran's claim for service connection, new and material evidence must be presented that 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). In the present case, there is no dispute that the veteran currently has arteriosclerotic heart disease. The present dispute involves whether any current heart disease is related to the veteran's military service, or to a service-connected disability. As such, significant evidence to reopen this claim would include medical nexus evidence that any current arteriosclerotic heart disease is related to an incident of the veteran's active military service, see Epps v. Gober, 126 F. 3d 1464, 1468 (1997); evidence that the veteran developed arteriosclerotic heart disease within the first year of service separation, see 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; or, evidence that any current arteriosclerotic heart disease was caused by the veteran's service-connected left lower extremity disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board finds that the record is devoid of any new and material evidence, and as such, the veteran's appeal must be denied. The evidence associated with the veteran's claims file following the February 1990 BVA decision includes both VA and private medical records, and statements and hearing testimony from the veteran. In pertinent part, some of that evidence is as follows. In a July 1990 private medical statement from Ghaleb A. Hannun, M.D., the doctor noted that the veteran had "significant arterial occlusive disease including the coronary arteries and aorto-iliac and circulation of the lower extremities." The doctor opined that "both the peripheral and coronary artery disease is one spectrum of the arteriosclerosis of the arterial system," and contribute to the veteran's disability. The Board finds that statement to be new, in the sense that it was not previously of record at the time of the February 1990 Board decision. However, although it may be new, the Board finds that it is essentially cumulative of other private medical statements already of record, which present a similar generalized theory between the veteran's post-traumatic circulatory problems in his left leg, and his arteriosclerotic heart disease. However, Dr. Hannun's statement, like the other similar statements previously of record, is not material as it does not present a specific causal relationship between any current arteriosclerosis and the veteran's service-connected residuals of a traumatic injury to his left lower extremity, which was the basis for the prior BVA denial. Nor does that statement present a relationship between any current arteriosclerosis and an incident of the veteran's military service. An August 1990 private medical statement from Patrick J. Moore, M.D., indicates that "the vascular injury sustained in 1958 resulted in a series of operations and a set of circumstances which, to a very considerable degree, aggravates his basic underlying non-trauma related arteriosclerosis." However, Dr. Moore also stated that, "He has peripheral arterial sclerosis. In the left lower extremity this problem is aggravated to a very significant degree by arterial trauma which he suffered in 1958." The Board finds that statement to be new, as it was not of record at the time of the February 1990 BVA decision. However, it is not material, in that it is not so significant that it must be considered to fairly decide the merits of the veteran's claim. In that regard, the statement merely indicates that the veteran's left lower extremity disability aggravates his arteriosclerosis, but does not indicate that the veteran's left lower extremity disability caused the arteriosclerosis or indicate how the left lower extremity disability chronically worsens the preexisting generalized arteriosclerosis. The record also contains a September 1991 private medical statement from Patrick A. Moore, M.D., which notes that the veteran has experienced increasing pain in his left lower extremity, of a neurotic nature. Further, Dr. Moore notes, in summary, that this disability will cause stress, which will have a negative influence on the veteran's ischemic heart disease. That statement, although new, is not material as it merely discusses the effects of the veteran's service- connected left lower extremity disability on a nonservice- connected condition, without presenting evidence of a causal relationship between the two disorders. Other medical evidence associated with the veteran's claims file since the February 1990 BVA decision is new, but not material, in that it is actually unsupportive of the veteran's claim. For example, in an April 1996 private medical opinion from William D. Jordan, Jr., M.D., Section of Vascular Surgery, University of Alabama at Birmingham, the doctor reviewed the veteran's record, and concluded that while atherosclerosis is considered a wide spread disease, affecting all areas of the vascular tree, the multiple occlusions of the veteran's left lower extremity graft were related to changes associated with the initial trauma, and the physical trauma of insertion of new grafts. He stated that "[b]oth of these processes are distinct from atherosclerosis but they can be exacerbated by atherosclerosis." Thus, that statement is not material, because it does not support a finding that the veteran's left lower extremity disability led to the development of arteriosclerosis. Conversely, the statement suggests that the veteran's left lower extremity disability was aggravated by the arteriosclerosis. Also of record is an August 1996 private medical statement from Kazi Mobin-Uddin, M.D. which concludes that the veteran's arteriosclerosis "is not aggravated by his peripheral vascular disease." The Board notes that although the veteran is not specifically service-connected for peripheral vascular disease, it appears from Dr. Mobin- Uddin's report that he was referring to the veteran's lower extremity disability. In any event, that statement is new, but not material to the veteran's claim, as it does not present evidence that the left lower extremity disability caused the arteriosclerosis. Similarly, in a July 1996 private medical statement from Kenneth H. Doolittle, M.D., at the Knox Community Hospital, it was concluded that regarding "whether or not [the veteran's arteriosclerotic heart disease] is aggravated by the service connected condition of peripheral vascular disease of the left lower extremity, I know of no literature evidence documenting a generalized condition." The Board finds that that statement is also new, in that it was not of record at the time of the February 1990 BVA decision. However, that statement is not material, as it does not support a causal relationship between the veteran's service-connected disability, and his arteriosclerosis. The Board also notes that more recently, in April 1998, medical records were received from the Walter Reed Army Hospital, reflecting treatment from April 1960 to May 1960, which was during the veteran's military service. These records were obtained pursuant to the February 1998 BVA remand, in light of the veteran's contentions that they may contain an indication of arteriosclerosis. The Board has reviewed those records, but they contain no evidence of arteriosclerosis. As such, the records are new, but not material, and do not provide a basis for reopening the veteran's claim. In summary, the Board has examined all the evidence associated with the veteran's claims file since the time of the February 1990 BVA decision, as described in pertinent part above. However, the Board finds that the evidence is not new and material, as it is either cumulative or redundant of evidence previously of record, or does not bear directly and substantially upon the specific matters under consideration. See 38 C.F.R. § 3.156(a). More specifically, the additional evidence is devoid of any medical findings that any current arteriosclerotic heart disease was incurred either during active military service, during the first post- service year, see 38 C.F.R. § 3.309(a), or is etiologically related to the veteran's left lower extremity disability, as he contends. The Board fully acknowledges the veteran's statements and testimony of record, including his testimony before the Board in a September 1997 hearing. Further, the Board does not doubt the veteran's beliefs that his in-service traumatic injury to left lower extremity contributed to his subsequent development of arteriosclerotic heart disease. However, the veteran's statements and testimony alleging such a link are not "new" evidence as they are essentially duplicative of his contentions at the time of the prior final denials of his claim for service connection. See Reid v. Derwinski, 2 Vet. App. 312 (1992). Moreover, the veteran's statements are not "material" evidence since, as a layman, he has no competence to give a medical opinion on the diagnosis or etiology of a disorder, and as such, his statements on such matters do not constitute material evidence to reopen his claim for service connection. See Moray v. Brown, 5 Vet. App. 211 (1993). Rather, competent material evidence is needed on that point. In conclusion, the Board finds that new and material evidence has not been presented to reopen a claim for service connection for arteriosclerosis, and as such, the veteran's appeal is denied. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a); Elkins, 12 Vet. App. at 218-219. As the Board is not reopening this claim, the Board need not reach the question of whether the claim is well grounded. II. Service Connection Service connection may be granted for diseases or injuries incurred or aggravated while in active service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be established for disabilities that are proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a). Furthermore, any additional disability resulting from the aggravation of a non-service connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In reviewing a claim for service connection, the initial question is whether the claim is well grounded. In the present case, the Board finds that the veteran's claim for service connection for a right lower extremity disorder, as secondary to a service-connected left lower extremity disorder, is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Savage v. Gober, 10 Vet. App. 488, 495-7 (1997); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim that is not implausible when his contentions and the evidence of record are viewed in the light most favorable to his claim. The Board also is satisfied that all the facts relevant to this claim have been properly and sufficiently developed. As noted earlier in this decision, the veteran is presently service-connected for a left lower extremity disability, which is characterized as multiple post left iliofemoral grafts, diminished left dorsalis pedis with lumbar sympathectomy laparotomy, insertion silicone sheet into abdomen, ischemia left leg, residuals of an injury. The veteran contends that he currently has a disorder in his right lower extremity, which was caused by his service- connected left lower extremity disability. The Board has reviewed all the evidence of record, and concludes that for the following reasons, the preponderance of the evidence is against the veteran's claim, and the appeal is denied. The veteran's service medical records are negative for any evidence of a disorder involving the right lower extremity. Following service separation, private medical records from the Mount Carmel Medical Center reveal that in May 1989, the veteran underwent a right superficial femoral endarterectomy and vein patch graft. There is no dispute that the veteran has a disorder to his right lower extremity; the question in this case is whether it is related to the veteran's left lower extremity disability. The veteran's claims file contains two medical opinions, which directly address the issue on appeal. Upon a review of those opinions, the Board is more persuaded by the opinion which concludes that there is no relationship between the veteran's right lower extremity disorder and his left lower extremity disorder, as set forth below. See Guerreri v. Brown, 4 Vet. App. 467, 470-471 (1993) (it is within the province of the Board to assess the credibility and weight to be attached to medical evidence). In a July 1990 statement from Ghaleb A. Hannun, M.D., it was noted that the veteran was seen for a second opinion regarding his disability and peripheral vascular arterial occlusive disease. Dr. Hannun noted that the veteran had significant arterial occlusive disease including the coronary arteries and aorto-iliac and circulation of the lower extremities. He stated that "[t]his disease, arteriosclerosis, is a systemic disease which affects both coronary, cerebral, periphery, aorta, iliacs and femorals and tibial vessels." Further, he stated that "I feel both the peripheral and coronary artery disease is one spectrum of the arteriosclerosis of the arterial system, and they go hand in hand and participate in the disability of this patient." The foregoing statement appears to suggest a relationship between the veteran's claimed disorder of the right lower extremity, and his service-connected left lower extremity disorder. Nevertheless, the Board finds that this statement is outweighed by the medical opinion described below, which was rendered after a review of the veteran's entire record. An April 1996 private medical opinion from William D. Jordan, Jr., M.D., Section of Vascular Surgery, University of Alabama at Birmingham, contains the following conclusions. The doctor stated that in 1958, the veteran suffered a blunt injury to the left pelvic region involving an arterial injury to the left common and external iliac arteries. He stated, in summary, that the etiology of the left lower extremity vascular disease was primarily post traumatic, and may have some superimposed elements of atherosclerosis. He further stated that "the etiology of [the veteran's] right lower extremity disease is most definitely atherosclerosis." He stated that he could not "find a correlation between the vascular disease of the left lower extremity and that of the right." In summary, he opined "[t]he etiology of the right lower extremity occlusive disease is atherosclerotic in origin and I do not consider it to have a 'cause-effect' relationship with the disease of the left leg." The Board finds that the foregoing medical opinion is probative in this case, because the examiner appears to have fairly considered the veteran's medical record, and set forth a clear explanation as to the etiology of both the left lower extremity disorder and the right lower extremity disorder. In short, the examiner concluded, with supporting clinical findings, that the right lower extremity disorder was not caused by the left lower extremity disorder. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (the Board's decision to adopt an independent medical expert's opinion may satisfy the statutory requirement of an adequate statement of reasons and bases, where the expert has fairly considered the material evidence which appears to support the appellant's position.) In light of the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the veteran's right lower extremity disorder is proximately due to his service-connected left lower extremity disorder. The record is also devoid of any evidence that the veteran's right lower extremity disorder was incurred during active military service. As there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to a reasonable doubt in favor of the veteran, the provisions of 38 U.S.C.A. § 5107(b) are not applicable, and the appeal as to this issue is denied. III. Temporary Total Rating According to the law, a temporary total disability rating may be assigned if treatment of a service-connected disability results in non-postoperative immobilization by a cast, surgery necessitating at least one month of convalescence, or severe postoperative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one or more major joints, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches. See 38 C.F.R. § 4.30. As set forth in the foregoing regulatory provisions, an integral element for assignment of a total rating, is that the disability for which a total rating is sought be a service-connected disability. In the present case, the veteran is claiming entitlement to a temporary total disability rating for a period of convalescence from surgery for peripheral vascular disease of the right lower extremity. However, as that disability is not service-connected, there is simply no legal basis to award benefits under 38 C.F.R. § 4.30, and the appeal is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim should be denied on the basis of the absence of legal merit). ORDER New and material evidence has not been presented to reopen a claim for service connection for arteriosclerosis, and the appeal is denied. Service connection for peripheral vascular disease of the right lower extremity, to include as secondary to service- connected peripheral vascular disease of the left lower extremity, is denied. A temporary total rating, pursuant to 38 C.F.R. § 4.30, based on a period of convalescence following surgery for peripheral vascular disease of the right lower extremity, is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals