Citation Nr: 0000237 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 99-03 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen the veteran's claim for entitlement to service connection for septal deviation. 2. Whether new and material evidence has been submitted sufficient to reopen the veteran's claim for entitlement to service connection for hypertrophied adenoids. 3. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran had active military service from April 1943 to December 1944. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a June 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. The issue of whether new and material evidence has been submitted sufficient to reopen the veteran's claim for entitlement to service connection for a stomach condition, raised by the appellant in January 1999, has not been adjudicated by the RO. Accordingly, this issue is not in appellate status, and is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The RO denied entitlement to service connection for hypertrophied adenoids and a septal deviation in May 1946; the claimant did not file a timely appeal. 3. Additional evidence proffered by the veteran since May 1946 include selective service medical records, written statements, and testimony before an RO Hearing Officer. This evidence does not demonstrate that the pre-existing-service conditions were aggravated by his military service. 4. The evidence submitted is not relevant and probative, and is not sufficient to reopen the claim for entitlement for service connection for hypertrophied adenoids and a septal deviation. 5. The service medical records do show treatment for headaches while the veteran was serving in the US Army. 6. Medical records showing treatment for headaches since the veteran's discharge in December 1944 have not been submitted. 7. Additionally, medical evidence that etiologically links the veteran's current claimed headache condition with the condition he suffered from while in service has not been presented. CONCLUSIONS OF LAW 1. Evidence received since the originating agency denied entitlement to service connection for septal deviation in May 1946 is not new and material, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1100, 20.1105 (1999). 2. Evidence received since the originating agency denied entitlement to service connection for hypertrophied adenoids in May 1946 is not new and material, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1100, 20.1105 (1999). 3. The claim for entitlement to service connection for headaches is not well-grounded. 38 U.S.C.A. §§ 1101, 1110, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999); Edenfield v. Brown, 8 Vet. App. 284 (1995) (en banc). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Following the veteran's release from active duty in December 1944, he applied for VA compensation benefits for a septal deviation and hypertrophied adenoids. After reviewing the veteran's service medical records, the RO concluded that service connection was not warranted for either condition. VA Adjudication Form 564, Rating Sheet, May 21, 1946. In denying the veteran's claim, the RO noted that both of the claimed disabilities existed prior to the veteran's induction into the service and that they were congenital defects, not subject to VA compensation benefits. Moreover, neither condition increased in severity while the veteran was in service, and hence, VA service connection benefits were not appropriate. The veteran was notified of that decision but he did not appeal. Thus, that decision became final. In July 1996, the veteran submitted a request to reopen his claim for a deviated septum and hypertrophied adenoids. To support his claim, the veteran proffered testimony before an RO Hearing Officer and he also submitted selected service medical records. The service medical records, which were duplicative of the records previously reviewed by the RO in 1946, did show findings of both pre-existing-service conditions. However, they did not show that the conditions became more severe while he was in service. With respect to the testimony given before the RO Hearing Officer, the veteran did admit that the conditions were present before he entered into the US Army. He did claim, however, that they became far more disabling while he was in service; he also stated that he continued to suffer from the two conditions to the present time. Yet, medical evidence showing that the conditions were aggravated by the veteran's military service was not submitted. Thus, in June 1997, the RO issued a decision that did not reopen the veteran's claim for entitlement to service connection for a psychiatric condition. VA Form 21-6796, Rating Decision, June 6, 1997. The veteran then appealed to the Board for review. In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1999). 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 nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When presented with a claim to reopen a previously finally denied claim, the VA must perform a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence submitted by the claimant is new and material. Second, if new and material evidence has been presented, it must be determined, immediately upon reopening the claim, whether the reopened claim is well grounded pursuant to 38 U.S.C. § 5107(a) (West 1991 & Supp. 1999) based upon all the evidence and presuming its credibility. The United States Court of Appeals for Veterans Claims (formerly known as the United States Court of Veterans Appeals) (hereinafter, "the Court") concluded in Elkins that the Federal Circuit in Hodge effectively "decoupled" the relationship between determinations of well-groundedness and of new and material evidence by overruling the "reasonable-possibility-of-a-change-in-outcome" test established by Colvin v. Derwinski, 1 Vet. App. 171 (1991). There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Third, if the reopened claim is well grounded, the VA may evaluate the merits of the claim after ensuring that the duty to assist under 38 U.S.C. § 5107(b) (West 1991 & Supp. 1999) has been fulfilled. In the rating decision on appeal, the RO adjudicated this issue according to the definition of material evidence enunciated in Colvin (". . . a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the final decision). The Federal Circuit in Hodge declared this definition of material evidence invalid. Therefore, the determination as to whether the veteran has submitted new and material evidence to reopen this claim will be made pursuant to the definition of new and material evidence contained in 38 C.F.R. § 3.156(a) (1999), as discussed above. The Board adds, however, that there is no prejudice to the veteran resulting from the Board's consideration of this claim, pursuant to Hodge and its progeny, in that he was provided notice of the applicable laws and regulations regarding new and material evidence, including 38 C.F.R. § 3.156 (1999). See Bernard v. Brown, 4 Vet. App. 384 (1993). Furthermore, the Board's review of this claim under the more flexible Hodge standard accords the veteran a less stringent "new and material" evidence threshold to overcome. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(a) (1999). Yet, it is the responsibility of the person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999). Generally, a well-grounded claim is a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy, 1 Vet. App. at 81. A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd 78 F.3d 604 (Fed.Cir. 1996) (table). This third element may be established by the use of statutory presumptions. Caluza, 7 Vet. App. at 506. Truthfulness of the evidence is presumed in determining whether a claim is well grounded. Id. at 504. The evidence received subsequent to May 1946 is presumed credible for the purposes of reopening the veteran's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Since the May 1946 rating decision, the following evidence has been received: (1) the veteran's written contentions; (2) selected service medical records; (3) testimony before an RO Hearing Officer. To the extent that the veteran contends that he currently has disabilities of the adenoids and septum and that he has had these conditions since service, this evidence is not new. He has not submitted any new contentions regarding these conditions; he has merely, at best, repeated his prior assertions. This evidence is cumulative of evidence associated with the claims file at the time of the May 1946 rating decision and is not new for purposes of reopening a claim. The Board notes also that, with respect to the selected service medical records submitted in support of his claim, these records were previously of record. In other words, they are also cumulative in that they have already been reviewed by the VA and have been found lacking in support of the veteran's contentions. The rest of the evidence received since May 1946, as detailed above, is new in that it was not previously of record. It is necessary, therefore, to decide if this evidence is material. To be material, it must tend to prove the merits of each essential element that was a basis for the prior denial. Therefore, in order to be material, there would have to be competent evidence tending to show that the veteran currently has ratable disabilities and that these conditions were incurred in, or aggravated by, or related to a condition he suffered therefrom while in service. None of the new evidence is material. First, the veteran has not submitted any evidence showing treatment for either one of the conditions since 1946. Thus, the only medical records showing treatment for either condition is 53 years old, and there is no medical confirming the current presence of either disability. Second, besides the contentions made by the veteran in both his written and spoken statements, medical evidence showing that either condition was aggravated by the veteran's military service has not been presented. The Board adds that the veteran's contentions that he has two disabilities that were aggravated by his military service are neither material nor competent evidence. There is no evidence that he possesses the requisite medical knowledge to render a probative opinion on a matter requiring medical expertise. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette, 8 Vet. App. at 74; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the Board finds that the evidence received subsequent to May 1946 is not new and material and does not serve to reopen the veteran's claim for service connection for a septal deviation and hypertrophied adenoids. 38 U.S.C.A. §§ 5108 and 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). The veteran may argue that this claim should be remanded to obtain an opinion as to whether the veteran currently has hypertrophied adenoids and a septal deviation that were somehow aggravated by his military service. Although the Board has determined that the veteran has not submitted new and material evidence to reopen his claim, the Court has held that while evidence submitted by an appellant may be insufficient to reopen the claim, it may nevertheless be sufficient to give rise to the statutory duty to assist in the claim's factual development. See White v. Derwinski, 1 Vet. App. 519 (1991); Ivey v. Derwinski, 2 Vet. App. 320 (1992); Marciniak v. Brown, 10 Vet. App. 198 (1997). The statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this case, however, it is the determination of the Board that none of the evidence submitted by the veteran gives rise to the duty to assist. There is no indication in the record that returning this claim for another VA examination and/or medical opinion would plausibly lead to the development of new and material evidence. Given the fact that there is no evidence of record indicating that any of the veteran's treating physicians have ever etiologically linked the veteran's two disabilities with his military service, or that they were aggravated by said service, it is pure speculation that an examination would produce such evidence. As such, the Board determines that an additional VA examination is not warranted. See Elkins v. Brown, 9 Vet. App. 391, 398 (1995) (citing 38 C.F.R. § 3.304(c) (development of evidence will be accomplished when deemed necessary)). II. Service Connection The veteran has also requested service connection for headaches that, he claims, began while he was in service and have continued to this day. Service connection may only be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999). It may also be granted if it is shown that a service-connected disability has caused or has resulted in another condition or disability. 38 C.F.R. § 3.310 (1999). However, before a determination is made concerning service connection, the claim must be reviewed in order to determine whether it is well-grounded. A well-grounded claim requires more than mere allegations; it must be plausible and with merit. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Murphy v. Derwinski, 1 Vet. App. 78 (1990). For a claim to be well-grounded, there must be: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is "plausible" is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Where such evidence is not submitted, the claim is not well- grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Moreover, if a claim is not well-grounded, then the Secretary no longer has a duty to assist a claimant in the developing the facts pertinent to the claim. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The question of whether or not a claim is well-grounded is significant because if a claim is not well-grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In this regard, the Court has observed that the statutory prerequisite of submitting a "well-grounded" claim "reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay claims which--as well-grounded--require adjudication. . . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones." Grivois v. Brown, 6 Vet. App. 136, 139 (1994). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under [38 U.S.C.A. §] 5107(a). See Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Furthermore, "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999). In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Considering these criteria, the Board finds that the veteran has not met his statutory burden of submitting evidence of a well-grounded claim for service connection for headaches. The Board acknowledges that while the veteran was in service, he was treated for headaches. The service medical records confirm this fact. However, the veteran has not submitted any post-service medical evidence showing treatment for these headaches. Although the VA has requested that the veteran provide medical treatment records documenting treatment of headaches over the past 53 years, the veteran has failed to do so. Moreover, he has failed to submit medical evidence etiologically linking his current claimed headache condition with the headaches he suffered from while he was in service. Thus, the only evidence in support of the veteran's claim are those contentions that he and his wife have made. For a claim to be well-grounded, there must be competent medical evidence of a current disability, the occurrence of a condition or disability while in service, and a nexus between an inservice injury or disease and a present disability. Caluza v. Brown, 7 Vet. App. at 506. Despite the veteran's and his wife's contentions, medical evidence supporting their contentions has not been presented. Given the lack of clinical evidence that etiologically links any current headache condition with his military service, it is the decision of the Board that the veteran has not presented a well-grounded claim. Mere contentions of the veteran and his wife, no matter how well-meaning or sincere, without supporting evidence, do not constitute a well-grounded claim. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993) Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (Where the determinative issue involves medical causation or a medial diagnosis, competent medical evidence to the effect that claim is "plausible" or "possible" is required.). Therefore, the claim fails and service connection for headaches is denied. ORDER 1. New and material evidence has not been submitted in support of this claim for service connection for septal deviation, and the claim has not been reopened. The benefit sought on appeal is denied. 2. New and material evidence has not been submitted in support of this claim for service connection for hypertrophied adenoids, and the claim has not been reopened. The benefit sought on appeal is denied. 3. Entitlement to service connection for headaches is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals Pursuant to 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999), and subsequently Tirpak v. Derwinski, 2 Vet. App. 609 (1992), a well-grounded claim requires more than just a mere allegation. In Tirpak, the United States Court of Veterans Appeals (Court), held that the appellant in that case had not presented a well- grounded claim as a matter of law. The Court pointed out that ". . . unlike civil actions, the Department of Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an allegation; the claimant must submit supporting evidence." Tirpak, 2 Vet. App. at 611.