Citation Nr: 0810571 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 06-32 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for degenerative joint disease, involving L5-S1, T12-L1, L1-L2 (claimed as a spinal condition), as secondary to a service connected scar, gunshot wound, left buttock with multiple retained metallic foreign bodies and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left hip disability, as secondary to a service connected scar, gunshot wound, left buttock with multiple retained metallic foreign bodies, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran served on active duty from January 1952 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decisions of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the veteran's claims for entitlement to service connection for degenerative joint disease, involving L5-S1, T12-L1, L1-L2, left leg disorder, and a left hip disorder. Subsequently it was noted by the RO that service connection for spinal column disorder, left leg disorder, and left side disability (identified by the veteran as the left hip) were previously denied in a final rating decision in May 1979. The RO then reopened and denied the aforementioned issues in a May 2007 supplemental statement of the case. In correspondence received in November 2008, the veteran withdrew from appellate consideration the issue pertaining to a left leg disability. Whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, regardless of the RO's action, the Board must initially address the question of whether "new and material" evidence has been presented sufficient to reopen the claims of service connection. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). As such, the claim has been so styled on the title page. The veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in September 2007. A transcript is associated with the veteran's claims folder. The Board notes that the veteran is currently service connected for scar, gunshot wounds, left buttock with multiple retained metallic fragments with a 40 percent disability rating assigned under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5317. FINDINGS OF FACT 1. Entitlement to service connection for gunshot wound of the left side, back, and legs was denied in a May 1979 rating decision; the veteran did not submit a notice of disagreement with this decision within one year of notice thereof. 2. The evidence associated with the claims file subsequent to the May 1979 rating decision is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it raises a reasonable possibility of substantiating the claims for service connection for a spinal condition and left hip disorder secondary to residuals of a gunshot wound. 3. Degenerative joint disease, involving L5-S1, T12-L1, L1- L2 secondary to residuals of a gunshot wound was not manifested during service and there is no competent medical evidence that a back disability is related to service or to a service connected disability. 4. A left side disorder (to include the hip) secondary to residuals of a gunshot wound was not manifested during service and there is no competent medical evidence that a left side disability is related to service or to a service connected disability. CONCLUSIONS OF LAW 1. The May 1979 rating decision which denied entitlement to service connection for a back pain syndrome with osteoarthritis and dorsal spine now recharacterized as degenerative joint disease, involving L5-S1, T12-L1, L1-L2 (claimed as a spinal condition), and as secondary to service connected residuals of a gunshot wounds is final; the evidence presented since the May 1979 rating action is new and material, and the claim has been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.156, 20.1103 (2007). 2. The May 1979 rating decision which denied entitlement to service connection for a left hip disorder secondary to gunshot wounds is final; the evidence presented since the May 1979 rating action is new and material, and the claim has been reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. Degenerative joint disease, involving L5-S1, T12-L1, L1-L2 (claimed as a spinal condition), and as secondary to service connected residuals of a gunshot wounds was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1153, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2007). 4. A left hip disorder secondary to gunshot wounds was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1153, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in June 2005, March 2006, January 2007, March 2007 correspondence, and in a May 2007 supplemental statement of the case of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. The veteran has been adequately informed of the specific basis for the prior denial of his claims. Kent v. Nicholson, 20 Vet. App. 1 (2006). While the appellant may not have received full notice prior to the initial decision, after sufficient notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claims were readjudicated. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. I. New and Material Evidence Generally, a claim which has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. As pertinent to this case, Title 38, Code of Federal Regulations, Section 3.156(a) provides that new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact 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. The Board must initially consider whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. If the Board finds that new and material evidence is not offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is required to review all of the evidence submitted by a claimant since the last final disallowance of a claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Background Service connection for gunshot wounds of the left side, back, and legs was denied by a May 1979 rating decision. In making that determination the RO considered the veteran's December 1954 service separation examination which was silent as to any left hip or back disorder; December 1961 private treatment records and x-rays from Dr. O'Neill revealing complaints of pain in the left hip. Examination revealed normal vertebrae and intravetertebral articulation; and an April 1979 VA examination. X-rays were also normal with no evidence of trauma, infection, or joint lesions. The veteran did not timely appeal this decision and it became final. The evidence of record received since the May 1979 RO decision consists of post-service private and VA treatment records; several VA radiological and examination reports; VA and private medical opinions; and the September 2007 Travel Board hearing transcript. This evidence is new and material and was not previously submitted to agency decisionmakers. It relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. To fairly assess the evidence, the claims must be re-opened and reviewed on the basis of the entire record. Accordingly, the claim is re-opened. 38 U.S.C.A. § 5108. II. Service connection for degenerative joint disease, involving L5-S1, T12-L1, L1-L2, and a left hip disability, as secondary to a service connected scar, gunshot wound, left buttock with multiple retained metallic foreign bodies. The service records reveal that the veteran received a single bullet wound to the left buttock during service in 1952. He was treated and returned to duty. There is no evidence of any injury to the left hip or back during service. The December 1954 separation examination is silent as to any left hip or back conditions. December 1961 private treatment records and x-rays from the veteran's physician, Dr. O'Neill note the veteran's complaints of pain in the left hip. Examination revealed normal vertebrae and intravetertebral articulation. An April 1979 lay statement is the effect that the veteran did not have a back problem until being wounded in combat. An April 1979 VA examination report noted that the veteran received a gunshot wound to the left buttock in Korea in 1952, was treated, and returned to duty. X-rays of the lumbosacral spine and sacroiliac joints were normal with no evidence of trauma, infection, or joint lesions. A chest film showed degenerative changes at the mid-dorsal spine. A January 1980 x-ray report noted several metallic fragments in the soft flesh superimposing the left hip. However, there was no evidence of fracture or dislocation of the left hip or bone. The veteran complained of severe hip and back pain when examined by VA in September 1980; X-ray study of these joints was essentially negative with the exception of retained metallic fragments. November 1997 and February 2002 VA examination reports found evidence of degenerative disease of the lumbar spine. X-rays revealed no bone or joint abnormality, and metal fragments in the soft tissue about the left hip. The veteran reported decreased range of motion of the left hip due to fatigue. A May 2005 VA examination noted that x-ray studies were essentially unchanged from the previous examination, with no fragments lodged in the intervertebral spaces. Medical records dated May 2004 from Marc J. Myers, M.D., reflect a history of severe and recurrent musculoskeletal pain. Dr. Myers noted a significant trauma a few years earlier when the veteran fell from a 30 to 35 foot high crane onto the frozen ground suffering multiple broken extremities and significant trauma to the back and head. He remained in a coma for several days. The diagnosis was chronic low back pain and arthritis secondary to a fall injury. An October 2005 VA examination noted the veteran's history was significant for a fall to a concrete surface from a bucket truck from a height of about 30 feet in 1996, requiring subsequent physical therapy for 9 months. The examiner referred to Dr. Myers' report noting that the veteran was hospitalized and in a coma for "quite a few days." The examiner noted that the veteran had difficulty trying to describe or to note where his back pain was. There was no radiation of pain down the legs or loss of strength. In describing the left hip condition the examiner noted that the veteran was referring to his already service connected gunshot wound to the left buttock. Examination revealed 5/5 strength in all extremities and symmetrical in all joints. The spine was not painful to percussion. X-rays revealed degenerative facet hypertrophy most severe at L5-S1, and degenerative changes at L5-S1, L1-L2, and T12-L1. The examiner stated: Opinion has been requested as to whether the back condition is due to military service. The veteran's degenerative joint disease of the back is not due to military service. The rationale is that his military injury involved the left buttock. He suffered a traumatic fall from 30 feet in 1996 resulting in a coma and multiple fractures necessitating prolonged hospitalization and physical therapy which is the most reasonable cause of his current condition, as well as the aging process. Left hip condition. This is the left buttock gunshot wound which has previously already been service connected. There does not appear to be an additional condition involving the left hip itself. In November 2007 subsequent to the September 2007 Travel Board, the veteran's representative submitted two letters with waiver of consideration by the RO. These included an October 2007 letter from Samantha A. Crossley, M.D., which merely reported that the veteran suffered a gunshot wound to the left buttock/back in the 1950's and has suffered pain in the area since. Also received was a November 2007 letter from a VA nurse practitioner noting that the veteran has had continuous back and left hip pain likely related to a service connected injury by gunshot to the left buttock/hip region. Analysis Applicable law provides that service connection will be granted if it is shown that the appellant suffers from disability resulting from any injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Applicable regulations also provide that a disability, which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for the degree of aggravation to a nonservice-connected disorder, which is proximately due to, or the result of a service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Such claims may be described as secondary service connection by way of aggravation. In deciding whether the appellant has a disability due to service, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board is mindful that it cannot make an independent medical determination, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans. The United States Court of Appeals for Veterans Claims has provided guidance for weighing medical evidence. The Court has held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Of course, it goes without saying that every medical opinion must be within the scope of expertise of the medical professional who proffered it, Layno v. Brown, 6 Vet. App. 465 (1994), and a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. As noted above the December 1954 service separation examination was silent as to any left hip, or back disorder. VA and private medical records and x-rays revealed normal vertebrae and intravetertebral articulation; and several VA examinations and X-ray reports all were normal with no evidence of trauma, infection, or joint lesions. Private medical records from Dr. Myers, dated May 2004, noted a significant trauma in which the veteran fell from a 30 to 35 foot high crane suffering multiple broken extremities and significant trauma to the back and head. In the October 2005 VA examination report it was noted that the veteran could not point to or describe his back disability; and when asked about his left hip disorder described his already service connected left buttock injury. The examiner opined that the veteran's degenerative joint disease of the back was not due to military service but most likely the result of his falling accident and the aging process; the left hip condition was actually the already service connected left buttock gunshot wound; and, there did not appear to be any left leg condition. The only medical opinion which favors the veteran's claim is the November 2007 letter from a VA nurse practitioner noting that the veteran has had continuous back and left hip pain likely related to a service connected injury by gunshot to the left buttock/hip region. As noted above, the veteran is already service-connected for the residuals of this injury at the 40 percent rate, which contemplates a moderately severe level of disability, involving functioning of the thigh and hip. That the veteran experienced back and hip pain for many years preceding his fall is not questioned; however, the medical evidence makes it clear that that such is part and parcel of the service-connected disorder and any resulting disability is contemplated in the 40 percent rating. In this regard, it is important to note that the nurse practitioner's opinion does not reflect that there is a separate and distinct left hip or back disorder, other than pain, which is of service origin, or related to service connected disability. In sum there is no competent evidence linking either a back or left hip disorder, including arthritis, to service. Moreover, presumptive service connection is not warranted because there is no competent evidence of a compensably disabling spinal or left hip arthritis within the first year following separation from active duty. Indeed, a spinal disorder (as opposed to a complaint of back pain) was not clinically demonstrated prior to Dr. Myers' May 2004 letter, 50 years after service. Hence, at best, the evidence shows a considerable length of time between the veteran's separation from service and objective findings of a spine disorder. Given the length of time between the veteran's separation from active duty and the pertinent diagnoses the preponderance of the competent evidence of record is against finding a continuity of objectively verifiable symptomatology. 38 C.F.R. § 3.303(d); Maxson v. West, 12 Vet. App. 453 (1999). (Service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service.) As noted above, left hip symptoms are already incorporated into the rating assigned the service connected left buttock disability. In reaching this decision the Board considered the veteran's own argument that a spine or left hip disorder developed while on active duty, or was secondary to the gunshot wound to the left buttock. There is no evidence, however, showing that the veteran has the medical training necessary to offer an opinion which requires specialized medical knowledge. As such, the veteran is not competent to offer such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(l). Therefore, the Board concludes that neither a spine nor left hip disorder was incurred in nor aggravated by service, nor may arthritis left leg be presumed to have been so incurred. As the preponderance of the evidence is against the claims for service connection, the benefit-of- the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for degenerative joint disease, involving L5-S1, T12-L1, L1-L2 (claimed as a spinal condition), as secondary to a service connected scar, gunshot wound, left buttock with multiple retained metallic foreign bodies. New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left hip disability, as secondary to a service connected scar, gunshot wound, left buttock with multiple retained metallic foreign bodies. Service connection for degenerative joint disease, involving L5-S1, T12-L1, L1-L2 (claimed as a spinal condition), as secondary to a service connected scar, gunshot wound, left buttock with multiple retained metallic foreign bodies is denied. Service connection for a left hip disability, as secondary to a service connected scar, gunshot wound, left buttock with multiple retained metallic foreign bodies is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs