Citation Nr: 1800684 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 10-45 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for prolonged compression, right peroneal nerve also claimed as right leg numbness. 2. Entitlement to service connection for a left hand scar. 3. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran had active duty from June 1982 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This matter was remanded by the Board for further development in July 2014. In September 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the Veteran's claims file. Also of note, as discussed below, the claim of entitlement to service connection for prolonged compression, right peroneal nerve, also claimed as right leg numbness, was previously denied by the RO in an October 1987 rating decision. The issue of entitlement to service connection for asthma is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 1987 rating decision denied service connection for prolonged compression, right peroneal nerve, also claimed as right leg numbness, on the basis of willful misconduct; the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since that October 1987 rating decision is redundant and does not raise a reasonable possibility of substantiating the Veteran's claim. 3. The scar on the Veteran's left hand is not at least as likely as not etiologically related to his military service. CONCLUSIONS OF LAW 1. The October 1987 rating decision denying service connection for prolonged compression, right peroneal nerve, also claimed as right leg numbness, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria to reopen the claim of entitlement to service connection for prolonged compression, right peroneal nerve, also claimed as right leg numbness, are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a left hand scar are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Reopening of Claim for Prolonged Compression, Right Peroneal Nerve The Veteran has petitioned to reopen his claim of entitlement to service connection for prolonged compression, right peroneal nerve, also claimed as right leg numbness, which was previously denied by VA in October 1987. A claim which is the subject of a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 establishing the claim. 38 C.F.R. § 3.156(a). The requirement that additional evidence received since a prior final rating must raise a reasonable possibility of substantiating the claim is a "low threshold" requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible, as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). After determining the competency and credibility of evidence, the Board must then weigh its probative value. Caluza, 7 Vet. App. at 511-12. Furthermore, when determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed, unless the evidence is inherently incredible or beyond the competence of the witness. See Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Also relevant to this claim is the fact that 38 U.S.C. §§ 105(a) and 1110 prohibit compensation where a "disability is a result of the veteran's . . . abuse of alcohol or drugs." Further, disability pension is not payable for any condition due to the veteran's own willful misconduct. 38 C.F.R. 3.301(b). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. Id. The pertinent regulations also specifically provide that the simple drinking of an alcoholic beverage is not of itself willful misconduct. 38 C.F.R. § 3.301(c)(2). But the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. Id. And if, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Id. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. Id. Additionally, an injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(d). For the purpose of that regulation, "alcohol abuse" means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that these sections preclude compensation for (1) a primary alcohol abuse disability incurred during service, and (2) any secondary disability (such as cirrhosis of the liver) resulting from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, disability compensation may be paid for an alcohol abuse disability that is due to a service-connected disability. Id. Such compensation is only available where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful misconduct. Id. at 1381. In this case, an October 1987 rating decision denied service connection for prolonged compression, right peroneal nerve, also claimed as right leg numbness. That denial was based on VA's determination that the condition was incurred as a result of the Veteran's own willful misconduct. The Veteran's service personnel records, including a September 1987 Administrative Decision, indicate that VA determined that the motor vehicle accident, which occurred on July 31, 1983, was the result of the Veteran's own willful misconduct. Other relevant portions of the Veteran's service personnel records indicate that at the time of the accident, the Veteran was driving under the influence of alcohol, and according to him, he was blinded by the highbeam headlights of an approaching vehicle, which caused him to veer off the road and down a dirt embankment, after which the vehicle he was driving flipped over and hit a tree, pinning he and his wife inside. According to those records, the Veteran admitted to having had several drinks shortly before the accident, and he was administered a blood test after the accident which determined that his blood ethanol level was 0.133%. Investigators thus found that he was driving under the influence of alcohol at the time of the accident. These personnel records and the Veteran's STRs also indicate that the Veteran suffered right peroneal neuropraxia as a result of the accident. The Veteran was notified of the denial and of his appellate rights by way of mail to the address that he indicated that he resided at the time, and he did not appeal or submit new and material evidence within the following year. Accordingly, that decision was final based on the evidence then of record. See 38 U.S.C. § 7105. Relevant evidence received since that October 1987 rating decision includes but is not limited to the transcript of the Veteran's September 2017 Board hearing, medical records notating his involvement in a 1983 motor vehicle accident and his report of the resultant right peroneal nerve-related injury, and written and oral statements from the Veteran indicating that his right leg condition was caused by an in-service motor vehicle accident in July 1983. Even accepting the Veteran's argument that his disability is related to the 1983 accident, this is immaterial to the claim at hand because the question is not whether there is a causal relationship with service but whether the accident causing the disability was or was not due to willful misconduct. This, rather than the question of etiology, was the basis for the prior final denial. The evidence submitted since the October 1987 rating decision, including that referenced above, indicates that the Veteran was involved in an auto accident in July 1983 and suffered a right peroneal nerve injury as a result, just like the evidence that was of record at the time of that October 1987 decision. Since that decision, the Veteran has not submitted any other, non-redundant evidence, including, for example, any new evidence that he was not intoxicated at the time of the accident. Accordingly, the evidence submitted since then is redundant of that which was of record at the time of the October 1987 rating decision which denied this claim, and it does not relate to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Consequently, there is no basis for reopening this claim, and the appeal as to this issue must be denied. III. Service Connection for Left Hand Scar The Veteran also claims entitlement to service connection for a scar on his left hand, which he claims to have sustained during boot camp in 1982 when, while at the shooting range, a bullet ricocheted and hit him in his left hand. See, e.g., Transcript of Hearing Before the Board dated in September 2017. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C. § 1113(b) (2015); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disability, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury incurred, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). In this case, a review of the Veteran's service treatment records (STRs) reveals no notations of any such shooting range or bullet-related injuries to his left hand. The STRs do contain a notation of left hand trauma, which occurred when a wood 2" x 4" fell on the Veteran's left hand in 1982, but there is no mention of any bullet or shooting range accident, nor of any associated broken skin or scar. In fact, a July 1982 Clinical Record in the Veteran's STRs indicates that a treating physician ordered an x-ray of the Veteran's left hand - presumably after and as a result of his report of the aforementioned incident with the 2" x 4" - and at that time, the skin on the Veteran's left hand was noted to be intact. Further, an April 1986 Report of Medical Examination indicates that the Veteran had no scars at that time, a few years after the claimed shooting range accident and bullet wound. The Veteran's post-service medical records, including his VA treatment records, contain little mention of the scar on his left hand. A February 2010 Progress Note in his VA treatment records, however, does note a "a visible scar 30mm x 3 mm scar from the removal of the bullet" that the Veteran claims hit his hand in boot camp in 1982. The Veteran was afforded VA examinations for his left hand scar in June 2012 and October 2013. There is no indication of the etiology of the scar in the report from the June 2012 examination, but the October 2013 examiner indicated that the scar was less likely than not incurred in or caused by the claimed in-service injury/event (in other words, the claimed shooting range accident). The examiner based this opinion on his finding, after review of the Veteran's records, that there is no evidence of a reported ricochet injury with laceration and suturing to the Veteran's left hand. After review of the evidence of record, the Board concurs with the October 2013 VA examiner's opinion. The Veteran is certainly competent to observe a scar on his left hand, as a scar would be readily capable of lay observation. That said, the Veteran's claim that his scar was the result of a shooting range accident is not supported by any of the other evidence of record. There is no notation of a shooting range accident or resultant left hand injury during the Veteran's active duty service in his STRs. The Board reasons that such an injury (a bullet wound to the hand) would most likely be noted in the Veteran's STRs, especially since he was treated around the same time for the left hand trauma caused by the 2" by 4" falling on his hand. Furthermore, the fact that it was specifically noted in April 1986 that the Veteran did not have any scars also carries considerable weight in opposition of the Veteran's claim. While the VA treatment provider who authored the February 2010 Progress Note did indicate that the Veteran has a scar on his left hand from a bullet wound, the Board finds that note to be of little probative value, since it is not supported by the Veteran's STRs, to the extent that it indicates that the scar was caused by a bullet wound, and also because there is little indication of how else the physician arrived at the determination that the scar was from a bullet wound. The October 2013 VA examiner's conclusion, on the other hand, was supported by a rationale and based upon a review of the Veteran's relevant records. In short, the Board finds the lack of notation of the claimed injury in the STRs to be more probative than the Veteran's statements and the seemingly inaccurate and unsubstantiated February 2010 Progress Note in the Veteran's VA treatment records. As such, the Board concludes that it is less likely than not that the Veteran's left hand scar was caused by an injury incurred in active military service, to include the claimed shooting range accident during boot camp. Accordingly, the claim must be denied. ORDER New and material evidence has not been received to reopen a claim for service connection for prolonged compression, right peroneal nerve, also claimed as right leg numbness. Entitlement to service connection for left hand scar is denied. REMAND The Veteran contends that his asthma worsened during and/or as a result of his active duty service. See, e.g., Transcript of Hearing Before the Board dated in September 2017. The Veteran's STRs indicate that he was having possibly related symptoms and was assessed as having bronchitis or pneumonia during service, in or about April 1985. His VA treatment records indicate that, in or about September 2010, his "asthma exacerbations" were seemingly becoming more frequent. See VA Treatment Records, Primary Care E & M Note dated in September 2010. His STRs, VA treatment records, and testimony at the September 2017 Board hearing all indicate that the Veteran has reported that his asthma began when he was about 11 years old. A VA examination is thus necessary to resolve all questions of etiology. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the complete updated VA and private records of all evaluations and treatment the Veteran received for his asthma. As needed, signed release forms for private records should be obtained. All requests for records and responses must be associated with the claims folder, pursuant to 38 C.F.R. § 3.159(c). 2. Schedule the Veteran for a VA examination with an appropriately qualified examiner for the purpose of determining the etiology of the Veteran's claimed asthma. The entire claims file must be made available for review. All necessary studies and tests must be conducted, all results should be associated with the claims file, and all opinions must be supported by a rationale. First, the examiner is specifically requested to address whether any current asthma clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated beyond natural progression during active service. If any portion of the first question is answered in the negative, the examiner must next opine as to whether it is at least as likely as not (a 50 percent or greater probability) that asthma is etiologically related to service. 3. After completing the above actions, and any other indicated development, the issue of entitlement to service connection for asthma must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, the appeal must then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on this matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs