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