Citation Nr: 0810376	
Decision Date: 03/28/08    Archive Date: 04/09/08

DOCKET NO.  06-04 637	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUES

1.	Entitlement to service connection for residuals of forearm 
fractures.  

2.	Whether new and material evidence has been received to 
reopen claims of service connection for back, leg, and 
stomach disabilities.  


REPRESENTATION

Appellant represented by:	Oklahoma Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

Sylvia N. Albert, Associate Counsel 




INTRODUCTION

The veteran had active service from May 1953 until April 
1955.  

These matters come before the Board of Veterans' Appeals (BVA 
or Board) from a July 2005 rating decision of the Department 
of Veterans Affairs (VA), Regional Office (RO) in Muskogee, 
Oklahoma.  

The veteran presented testimony at a personal hearing in May 
2006 at the RO before a Decision Review Officer (DRO).  A 
copy of the hearing transcript was placed in the claims 
folder. 


FINDINGS OF FACT

1.	The competent medical evidence of record does not 
demonstrate that the veteran suffers residuals of forearm 
fractures.  

2.	An unappealed rating decision in June 1992 denied 
entitlement to service connection for back, leg, and stomach 
disabilities.  

3.	Evidence added to the record since the June 1992 rating 
decision, when considered in conjunction with the record as a 
whole, was not previously of record, and is not cumulative or 
redundant of evidence previously of record, but does not 
provide a reasonable possibility of substantiating the claims 
for service connection for back, leg, and stomach 
disabilities.  


CONCLUSIONS OF LAW

1.	A forearm disability was not incurred in or aggravated by 
active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 
C.F.R. § 3.303 (2007).  
2.	The unappealed June 1992 rating decision, which denied 
entitlement to service connection for back, leg, and stomach 
disabilities, is final.  38 U.S.C.A. § 7105(c) (West 1991); 
38. C.F.R. §§ 3.104, 20.302, 20.1103 (1993).  

3.	New and material evidence has not been received since the 
June 1992 rating decision and the veteran's claims for 
service connection for back, leg, and stomach disabilities 
are not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156(a) (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2007).  The VCAA applies in this case. 

Duty to Notify

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must 
inform the claimant of any information and evidence not of 
record (1) that is necessary to substantiate the claim; (2) 
that VA will seek to provide; (3) that the claimant is 
expected to provide; and (4) must ask the claimant to provide 
any evidence in her or his possession that pertains to the 
claim in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA 
notice should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see 
also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Further regarding notice, on March 3, 2006, the United States 
Court of Appeals for Veterans Claims (Court) issued its 
decision in the consolidated appeal of Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  The Court in 
Dingess/Hartman holds that the VCAA notice requirements of 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a "service connection" claim.   As 
previously defined by the courts, those five elements 
include:  (1) veteran status; (2) existence of a disability; 
(3) a connection between the veteran's service and the 
disability; (4) degree of disability; and (5) effective date 
of the disability.  Upon receipt of an application for 
"service connection," therefore, VA is required to review 
the information and evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
This includes notice that a disability rating and an 
effective date for the award of benefits will be assigned if 
service connection is awarded.  

In this case, an April 2005 letter from the AOJ to the 
appellant satisfied VA's duty to notify.  The letter informed 
the veteran of his and VA's duties for obtaining evidence and 
what VA had done to help his claim.  In addition, the veteran 
was told of what evidence was necessary to establish 
entitlement to the benefit he claimed, and asked to provide 
any evidence in his possession that pertained to his claims.  
Furthermore, the notice informed the claimant that new and 
material evidence could be submitted to reopen the claims and 
indicated what type of evidence would qualify as "new" and 
"material" evidence.  The veteran was specifically informed 
of what evidence would be necessary to substantiate the 
elements required to establish service connection that were 
found insufficient in the previous denial, as required by 
Kent v. Nicholson.  

With regard to the veteran's claims, the Board notes that the 
April 2005 letter failed to inform the veteran that a 
disability rating and effective date would be assigned in the 
event that he was awarded any benefit sought.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473.  However, as 
service connection is denied in this case, VA's failure to 
provide this notice is not prejudicial to the veteran.  Any 
questions as to the appropriate disability rating or 
effective date to be assigned have therefore been rendered 
moot, and the absence of notice on these two elements of a 
service connection claim does not prejudice the veteran.  

Duty to Assist 

VA has a duty to make reasonable efforts to assist a claimant 
in obtaining evidence necessary to substantiate the 
claimant's claim.  38 U.S.C.A. § 5103A(a)(1) (West 2002).  In 
this case, the claims file contains the veteran's service 
records and reports of VA post-service examinations.  
Additionally, the veteran's statements in support of his 
appeal are affiliated with the claims folder.  It is noted 
that the veteran's service medical records are unavailable, 
as they are presumed to have been destroyed in a fire.  In 
such circumstances, the Board has a heightened duty to 
explain its findings and conclusions and to consider 
carefully the benefit-of-the-doubt rule.  See O'Hare v. 
Derwinski, 1 Vet. App. 365, 367 (1991) (finding that the BVA 
has a heightened duty in a case where the service medical 
records are presumed destroyed).

A review of the claims file indicates that the veteran's 
service medical records were originally requested in August 
1990, at the time the veteran filed his original service 
connection claims.  A response received in September 1990 to 
such request shows that the veteran's service medical records 
were unavailable and presumed to have been lost in a fire at 
the National Personnel Records Center (NPRC).  VA 
subsequently conducted a search for alternate records, 
utilizing the veteran's complete organizational assignment 
and the dates the veteran identified as times of treatments.  
However, a June 1992 response conveyed that, while "searches 
were made for morning reports" for the veteran's assignments 
at the times of treatment, "no entries for sick (sic) or 
illness were found for the veteran."  Based on the 
foregoing, it is not felt that additional efforts are 
required under the VCAA.  Indeed, it appears further 
development would serve no useful purpose and would result in 
unnecessarily imposing additional burdens on VA with no 
benefit flowing to the veteran.  See Soyini v. Derwinski, 1 
Vet. App. 540, 546 (1991) (finding that further development 
would serve no useful purpose and would result in 
unnecessarily imposing additional burdens on VA with no 
benefit flowing to the veteran).  

VA's duty to assist includes providing a VA medical 
examination when necessary to make a decision on the claim.  
38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 
(2007).  A medical examination is "necessary" if the 
evidence of record (lay or medical) contains competent 
evidence that the claimant has a current disability, or 
persistent or recurrent symptoms of a disability; and 
indicates that the disability or symptoms may be associated 
with the claimant's active military, naval, or air service; 
but does not contain sufficient medical evidence for the 
Secretary to make a decision on the claim.  38 U.S.C.A. 
§5103A(d)(2).  

In this case, the veteran was not afforded medical 
examinations for his disabilities.  The Board, after careful 
review of the claims folder, has found that such examinations 
are not "necessary" as defined by the statute.  With regard 
to the veteran's claims to reopen claims for service 
connection for leg, back, and stomach disabilities, the 
record contains evidence illustrating that the veteran has 
current bilateral knee disabilities.  However, there is 
nothing in the record to indicate that there is any incident 
of service to which the veteran's knee disabilities may be 
associated.  The evidence of record also does not reflect 
that the veteran suffers from a current stomach or back 
disability.  Further, the record also fails to demonstrate 
that the veteran suffers from any residuals of forearm 
fractures.  The only evidence supporting the premise that the 
veteran's disabilities are linked to service are the 
veteran's own statements.  Such evidence is insufficient to 
trigger VA's duty to provide examinations. The Court has held 
that, where the supporting evidence of record consists only 
of a lay statement, VA is not obligated, pursuant to 
5103A(d), to provide an appellant with a medical examination.  
See Duenas v. Principi, 18 Vet. App. 512, 519 (2004).  The 
Board is thus of the opinion that providing the veteran with 
examinations is not necessary, and no reasonable possibility 
exists that with such assistance these claims could be 
substantiated.  See 38 U.S.C.A. § 5103A. 

The Board is of the opinion that all available evidence that 
could substantiate the claims has been obtained based on 
previous search attempts.  In view of the foregoing, the 
Board finds that all relevant facts have been properly and 
sufficiently developed, and no further development is 
required to comply with the duty to assist the veteran in 
developing the facts pertinent to his appeal.  Hence, VA's 
duty to assist the veteran in the development of his claims 
has been satisfied.  



Legal Criteria and Analysis

Service Connection 

Service connection will be granted for disability resulting 
from an injury incurred or a disease contracted in service, 
or for aggravation of a pre-existing injury or disease in 
active military service.  38 U.S.C.A. §§ 1110, 1131 (West 
2002); 38 C.F.R. § 3.303 (2007).  Service connection will 
also be approved for any disease diagnosed after discharge 
when all of the evidence establishes that the disease was 
incurred in service.  See 38 C.F.R. § 3.303(d).  

"Generally, to prove direct service connection, a claimant 
must submit (1) medical evidence of a current disability, (2) 
medical evidence, or in certain circumstances lay testimony, 
of in-service incurrence or aggravation of an injury or 
disease, and (3) medical evidence of a nexus between the 
current disability and the in-service disease or injury."  
Pond v. West, 12 Vet. App. 341, 346 (1999).  Where the 
determinative issue involves a medical diagnosis, competent 
medical evidence is required.  This burden typically cannot 
be met by lay testimony because lay persons are not competent 
to offer medical opinions.  Espiritu v. Derwinski, 2 Vet. 
App. 492, 494-95 (1992).

The veteran argues that he is entitled to service connection 
for residuals of forearm fractures.  In order to establish 
service connection, the veteran must provide evidence of 
current disability, an in-service injury or disease, and a 
nexus between the current disability and the in-service 
injury or disease.  In this case, the record does not reflect 
that the veteran has any current residuals of forearm 
fractures.  The Board notes that a service document dated in 
June 1953, signed by a medical officer, indicates that the 
veteran was given a limitation of "no heavy lifting" due to 
fractured forearms.  However, there is no report of, nor 
reference to, x-rays confirming such a diagnosis.  In 
addition, there is no evidence in the record of any post-
service treatment or diagnosis of a forearm disability, or 
that the veteran suffers from any residuals of forearm 
fractures.  There is, thus, no competent medical evidence 
whatsoever indicating that the veteran has a current forearm 
disability.  Therefore, in the absence of any evidence to the 
contrary, the Board must conclude that there has been no 
demonstration by competent clinical evidence of record that 
the veteran has a current forearm disability.

There cannot be a valid claim for service connection unless 
there is proof of a present disability.  Brammer v. 
Derwinski, 3 Vet. App. 223, 225 (1992).  The only evidence 
offered to prove that the veteran has residuals of forearm 
fractures are his own statements.  However, as a lay person 
with no demonstrated medical expertise, his opinion does not 
constitute competent medical evidence and lacks probative 
value.  Espiritu, 2 Vet. App. at 494-95.  There is no 
clinical evidence of record to support the veteran's claim 
that he has a forearm disability.  Therefore, as the evidence 
of record fails to establish that the veteran has a forearm 
disability, the Board finds that the preponderance of the 
evidence in this case falls against the claimant, making the 
benefit of the doubt rule inapplicable.  See 38 U.S.C.A. § 
5107(b).

New and Material Evidence

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 
(West 2002); 38 C.F.R. § 3.156 (2007).  When a veteran seeks 
to reopen a final decision, the first inquiry is whether the 
evidence presented or secured since the last final 
disallowance of the claim is "new and material."  

The Board notes that there has been a regulatory change with 
respect to the definition of new and material evidence, which 
applies prospectively to all claims made on or after August 
29, 2001.  See 38 C.F.R. § 3.156(a).   As the current claim 
was filed after this date, the new version of the regulation 
is applicable in this case  

Under the revised version of 38 C.F.R. § 3.156(a), new 
evidence is existing evidence not previously submitted to 
agency decision-makers.  Material evidence is existing 
evidence that, by itself or when considered with previous 
evidence of record, relates to a fact, not previously 
established, which is necessary to substantiate the claim.  
New and material evidence can be neither cumulative nor 
redundant of the evidence of record at the time of the last 
prior final denial of the claim sought to be reopened, and 
must raise a reasonable possibility of substantiating the 
claim. 38 C.F.R. § 3.156(a) (2007).   If all of these tests 
are satisfied, the claim must be reopened. 

The appellant initially raised claims of entitlement to 
service connection for back, leg, and stomach disabilities in 
August 1990.  A June 1992 rating decision denied service 
connection, on the basis that there was no evidence contained 
in the veteran's claims folder to show that these conditions 
were incurred during the veteran's active military service.  
The appellant did not appeal this decision and it became 
final.  See 38 U.S.C.A. § 7105(c) (West 1991); 38. C.F.R. 
§§ 3.104, 20.302, 20.1103 (1993).  

The appellant asserts that new and material evidence has been 
submitted to reopen his claims for service connection.  In 
June 1992, at the time of the final RO decision that denied 
service connection, the record did not contain any service 
medical records, or any other objective evidence, which noted 
any incident of service related to complaints or findings 
involving the veteran's stomach, legs or back.  The record at 
that time was also void of clinical demonstration of any 
disability of the stomach, leg, or back.  

In March 2005, the appellant sought to reopen his claim with 
the submission of new evidence.  The newly received evidence 
includes treatment records from the VA medical center (VAMC) 
in Muskogee, Oklahoma, spanning 1991 through 2005, wherein 
the veteran was treated for a variety of conditions, 
including degenerative changes of the right and left knees, 
complaint of back pain, and complaint of stomach pain and 
diarrhea of a few days onset.  In January 2003, he reported 
he had had stomach pain in military service.  The diagnoses 
included self-limiting diarrhea.  A colonoscopy with 
polypectomy, in February 2004, revealed multiple nonbleeding 
diverticula in the left side of the colon.  A small 2 to 3 
millimeter polyp was snared and removed from the cecum.  In 
April 2004, the veteran reported he took "stomach" 
medication.  Gastrointestinal examination in April 2004 was 
unremarkable.  In March 2005, a list of medications did not 
include stomach medication.  

In order to reopen a claim under 38 C.F.R. § 3.156(a), 
evidence submitted must first be found to be new.  In the 
present case, treatment and examination reports received from 
VAMC Muskogee were not previously submitted to agency 
decision makers.  In addition, these records are not 
duplicates of other evidence already in the claims file.  
Therefore, the evidence received is new under 38 C.F.R. § 
3.156(a).  

Newly submitted evidence must also be found to be material in 
order to reopen a claim under 38 C.F.R. § 3.156(a).  Evidence 
is material if it relates to a fact, not previously 
established, which is necessary to substantiate the claim.  
In this case, the treatment records from the Muskogee VAMC, 
dated from 1991 through 2005 contain information regarding 
the veteran's current ailments.  These records reflect that 
the veteran suffers from bilateral knee disabilities.  While 
he reported complaints of stomach and back pain, there is no 
evidence of a current stomach or back disability.  In 
addition, nothing in the records relates the veteran's 
current stomach and/or back complaints, or knee disabilities, 
to his time in service.  Thus, the newly received evidence 
does not help the veteran in substantiating his claims.  The 
evidence is therefore not material under 38 C.F.R. § 3.156.  

The Board has carefully examined all of the evidence admitted 
subsequent to the RO's prior denial in June 1992.  These 
newly received records establish the veteran's current 
condition, but do not link any current ailment at issue to 
service.  While the evidence is new, as it was not previously 
of the record and is not duplicative, it does not relate to a 
previously unsubstantiated fact necessary to substantiate the 
claim, that of nexus of any current disability at issue to 
service.  The Board therefore finds that the evidence 
submitted by the appellant after June 1992 is new, but cannot 
be considered to be material.  See 38 C.F.R. § 3.156(a).  
Thus, the claims for service connection for stomach, back and 
leg disabilities are not reopened. 




ORDER

Service connection for residuals of forearm fractures is 
denied.

New and material evidence not having been received, the 
appeal to reopen claims for service connection for back, leg, 
and stomach disabilities is denied.





____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs