Citation Nr: 9927875 Decision Date: 09/28/99 Archive Date: 10/05/99 DOCKET NO. 97-26 849 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a low back disorder. 2. Entitlement to service connection for disability of the hips. 3. Entitlement to service connection for disability of the legs. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from October 1954 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision by the RO that denied the veteran's application to reopen a previously denied claim of entitlement to service connection for a low back disorder, and denied claims of entitlement to service connection for disability of the hips and of the legs. By rating action in October 1989, the RO denied the veteran's claim of entitlement to service connection for a low back disorder. He was notified of that decision in November 1989, but did not initiate an appeal within the one-year period allowed and, as a result, the denial became final. 38 C.F.R. §§ 19.129, 19.192 (1989). A previously denied claim of service connection may not be reopened in the absence of new and material evidence. See 38 U.S.C.A. § 5108 (West 1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has made it clear that the Board has a duty to address the new and material evidence issue regardless of the RO's actions. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167 (1996). Consequently, the decision that follows includes a determination on the question of whether the claim should be reopened. FINDINGS OF FACT 1. Service connection for a low back disorder was denied by an October 1989 RO rating decision. The veteran was notified of the adverse determination in November 1989, but did not initiate an appeal of the denial. 2. Evidence received since the October 1989 denial does not provide information relevant to whether a low back disorder was incurred in or aggravated by service. 3. No competent medical evidence has been presented to link current disability of the hips or of the legs to the veteran's period of military service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen a previously denied claim of service connection for a low back disorder has not been submitted. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1998). 2. The claim of service connection for disability of the hips or disability of the legs is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Low Back The veteran's current claim is not his first such claim. Service connection for a low back disorder was denied by a rating decision in October 1989. The veteran was notified of the denial in November 1989, but did not initiate an appeal within the one-year period allowed and, as a result, the denial became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 19.129, 19.192 (1989). As a result, the Board may now consider the veteran's claim of service connection on the merits only if "new and material evidence" has been presented or secured since the October 1989 denial. 38 U.S.C.A. § 5108 (West 1991); Manio v. Derwinski, 1 Vet. App. 144, 145-46 (1991). (For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).) The regulations define new and material evidence as follows: New and material evidence means evidence not previously submitted to agency decisionmakers 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) (1998). In addressing whether new and material evidence has been presented, the Board initially notes that a previously used test for "materiality" adopted by the Court in the case of Colvin v. Derwinski, 1 Vet. App. 171 (1991) was recently invalidated. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Hodge, the United States Court of Appeals for the Federal Circuit indicated that the Colvin test for "materiality" made it more difficult for claimants to submit additional evidence for Board consideration than did the test for material evidence found in 38 C.F.R. § 3.156, and thus the Court overruled Colvin in this respect. Therefore, the ruling in Hodge must be considered as easing the appellant's evidentiary burden in seeking to reopen a previously and finally denied claim. Hodge, supra. The Court in Elkins v. West, 12 Vet. App. 209 (1999) (en banc), recently held that Hodge requires the replacement of a two-step approach to handling applications to reopen as outlined in Manio v. Derwinski with a three-step approach. See also Winters v. West, 12 Vet. App. 203 (1999) (en banc). Under this three-step approach, the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Second, if new and material evidence has been presented, the Secretary must determine whether, based upon all of the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a). Third, if the claim is well grounded, then the Secretary may proceed to evaluate the merits of the claim, but only after ensuring the duty to assist under 38 U.S.C. § 5107(a) has been fulfilled. Elkins, supra. The Board has reviewed the additional evidence associated with the claims folder since the October 1989 denial, and finds that new and material evidence has not been presented. The evidence available at the time of the October 1989 denial includes the veteran's service medical records, which show that, in May 1955, he was seen for complaints of having had low back pain for about seven months. He reported a history of having injured his back after jumping off a seven-foot wall. Since that time, he had had intermittent low back pain and radiation to the mid-thorax. Physical examination revealed tenderness over the interspace between L4 and L5, and some tenderness around the 1st and 12th lumbar vertebrae. It was noted that his complaints of pain were primarily on anterior flexion of the spine. X-rays of the lumbosacral area revealed a spina bifida occulta of S-1, and findings suggested rheumatoid arthritis. It was further noted that the veteran had chronic lumbosacral sprain. In July 1963, he was seen for back pain. In May 1965, the impression was probable lumbosacral strain. In October 1965, it was noted that his pain in the lumbosacral area was severe. In October 1966, acute back strain was noted. In June 1968, he was seen for complaints of low back pain. In August 1968, it was noted that he had no back pain. An April 1969 separation examination report was negative for any back abnormalities. Thereafter, a September 1969 VA examination report shows that the veteran's musculoskeletal system was normal. VA outpatient treatment records, dated from April 1981 to June 1983, show that the veteran was treated for complaints unrelated to the back. Private treatment records, dated from February 1972 to August 1989, show that, in June 1989, the veteran was seen for complaints of right leg pain. He reported that he was injured at work the previous week and had developed acute pain radiating down the right leg. It was noted that he had not complained of much back pain. The impression was acute lumbar spine pain disorder with sciatica. In July 1989, it was noted that he had had a flare-up of back pain. The veteran submitted his application to reopen his claim of service connection in March 1997. Additional evidence, including October 1997 hearing testimony and written statements to the effect that he had incurred his back disorder in service is new but the Board finds that it is not material. While the veteran is competent to describe symptoms he was experiencing and which he observed during service, his assertions that his current back disorder was incurred in or aggravated by service are not helpful to the fact-finding process because he is not competent to provide evidence that requires medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (holding that lay assertions of medical causation cannot serve as a predicate to reopen a previously denied claim). The service medical records received in November 1996, and the majority of the private treatment records, dated from June to August 1989, are duplicative of evidence that was previously in the claims file and considered by the RO. Additionally, the remaining evidence is new in that it was not of record at the time of the October 1989 denial, but it is not material because it does not address the question of whether a low back disorder may be attributed to service. Private treatment reports, dated from July 1989 to September 1996, April 1997 VA examination reports, VA outpatient treatment and records, dated from April 1996 to February 1997, medical records received in September 1997 in conjunction with a May 1996 Social Security Administration decision, and correspondence from the veteran's previous employer, dated in May 1997, all show that the veteran had received post-service treatment for a low back disorder since July 1989, which was 20 years after discharge from service. This evidence merely establishes that he had sought treatment for his back problems after service. As with other new evidence, this evidence does not address whether any current low back disorder is related to injuries or complaints for which he was treated during service. In short, it does not tend to support the veteran's claim in a manner different from the evidence previously of record. Consequently, the newly received evidence, including post-service treatment reports, is not so significant that it must be considered in order to fairly decide the merits of the claim. In other words, the evidence does not tend to provide information directly pertinent to the underlying question of service connection beyond what was known previously. Accordingly, the Board concludes that the veteran has not submitted new and material evidence under 38 C.F.R. § 3.156(a). The Board recognizes that Hodge resulted in a change in the test for determining whether newly submitted evidence is "material." However, the Board finds no prejudice to the veteran by proceeding with an adjudication of the question of reopening. This is so because the RO specifically notified the veteran of the provisions of 38 C.F.R. § 3.156 (a) in the statement of the case. The veteran consequently was on notice of the regulatory standard and had therefore been given the opportunity to present evidence and argument with this standard in mind. Hips and Legs Service connection is warranted where the evidence of record establishes 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 by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1998); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1998). If a reasonable doubt arises regarding service origin, or any other point, it should be resolved in the veteran's favor. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.102 (1998). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu, 2 Vet. App. at 492. 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. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The Court has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded. There must be 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. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. For a claim of service connection on a secondary basis to be well grounded, competent medical evidence showing a causal relationship or aggravation must be presented. Jones v. Brown, 7 Vet. App. 134 (1994).38 C.F.R. § 3.310 (1998). The veteran claims that his disability of the hips and legs is attributable to his back injury in service. His service medical records do show that he was treated for a back injury and complaints of low back pain; however, these records are negative for any complaints of, treatment for, or diagnoses suggesting disability of the hips or legs. From the time of the veteran's separation from service in May 1969 until 1994, an interval of 25 years, there was no suggestion by competent medical evidence that he had disability of the hips or of the legs. VA treatment records show that, at a September 1969 VA examination, the veteran had no hip or leg abnormalities. In September 1996, right hip pain with ambulation was noted. The assessments included peripheral vascular disease (PVD)-- claudication of the right leg. In April 1997, it was noted that his legs were getting worse. The impression was neurogenic claudication. In September 1997, it was noted that he had increased right leg pain with walking. Private treatment records show that, in June 1989, the veteran was noted to have much less in the way of sciatica and that he was walking easily with a normal gait. In November 1994, the impression was leg pain--probably claudication pain. In July 1995, the impressions were PVD and claudication. In September 1995, the impressions included probable claudication of both legs. In April 1996, severe PVD was diagnosed. The veteran has not presented any competent medical evidence to show a link between any current disability of the hips or legs and his period of military service. None of the examiners of record, VA or private, provided an opinion regarding the onset of any leg or hip disability. The Board has considered the veteran's written statements and October 1997 hearing testimony, regarding the onset of these disorders, as well as correspondence from a former employer in May 1997 indicating that the veteran had had problems with severe pain in the right hip and leg, and problems with both legs going numb during his employment from May 1981 to March 1997. While the veteran is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, there is no indication that he is competent to comment upon etiology or time of onset. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494-95. Absent the presentation of competent medical evidence showing a link between current disability and service, between current disability and continuous symptoms since service, or between any service-connected disability and disability of the hips or of the legs, the veteran's claims may not be considered well grounded and must be denied. It has also been contended on the appellant's behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit, supra, in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his claim. In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears merely to reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant's application is incomplete, or that he is aware of evidence which would render his claims well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Absent the presentation of new and material evidence, the appeal to reopen a claim of service connection for a low back disorder is denied. Service connection for disability of the hips is denied. Service connection for disability of the legs is denied. MARK F. HALSEY Member, Board of Veterans' Appeals