Citation Nr: 9929952 Decision Date: 10/20/99 Archive Date: 10/29/99 DOCKET NO. 98-05 101 ) 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 claims of service connection for residuals of a right ankle sprain, knee disability, leg disability, and spine disability. 2. Entitlement to service connection for residuals of cold injury to the feet, claimed as frostbite. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from April 1944 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision by the RO that denied a claim of entitlement to service connection for residuals of cold injury to the feet, claimed as frostbite. The RO also denied the veteran's application to reopen previously denied claims of service connection for residuals of a right ankle sprain, knee disability, leg disability, and a spine disability. By an April 1947 decision, the Board denied claims of service connection for residuals of a right ankle sprain, knee disability, leg disability, and spine disability. In this regard, it should be noted that 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 previously denied claims should be reopened. In the veteran's substantive appeal received in April 1998, he appeared to express a desire to pursue the issue of whether new and material evidence has been submitted to reopen a claim of service connection for hearing loss. This issue has not yet been addressed by the RO and is referred to the RO for appropriate action. FINDINGS OF FACT 1. Service connection for residuals of a right ankle sprain, knee disability, leg disability, and spine disability was denied by the Board in April 1947. 2. Evidence received since the April 1947 Board denial does not provide information relevant to whether the veteran has residuals of a right ankle sprain, knee disability, leg disability, or spine disability that is attributable to military service. 3. No competent medical evidence has been presented to link any current residuals of cold injury to the feet 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 residuals of a right ankle sprain, knee disability, leg disability, or spine disability has not been submitted. 38 U.S.C.A. §§ 1110, 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The claim of service connection for residuals of cold injury to the feet, claimed as frostbite is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Right Ankle, Knees, Legs, and Spine The veteran's current claims are not his first such claims. Service connection for residuals of a right ankle sprain, knee disability, leg disability, and spine disability was denied by an April 1947 decision of the Board. That decision is final. 38 U.S.C.A. § 7104(b) (West 1991). As a result, the Board may now consider the veteran's claims of service connection on the merits only if "new and material evidence" has been presented or secured since the April 1947 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) (1999). 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 new and material evidence than did the test 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 when 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). 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 April 1947 denial, and finds that new and material evidence has not been presented. The evidence available at the time of the April 1947 denial included the veteran's service medical records, which show that, in November 1944, he was seen for complaints of painful feet and legs, aggravated by hiking and long standing. In April 1945, the veteran was seen for complaints of having had light swelling and tenderness of the right ankle after spraining it as a result of jumping into a ditch. The final diagnosis was "sprain, acute, moderate, ankle, right." A December 1945 separation examination report notes the veteran's complaints of pain in the legs from the hips down, and complaints of a sprained ankle in April 1945, but was otherwise negative for any ankle, knee, leg, or spine abnormality. Thereafter, a November 1946 VA examination report shows that the veteran complained of having had pain in his feet and legs during basic military training, which gradually worsened until he could no longer hike or take long walks. He also reported that his ankles and calves ached on long standing or walking, and that these pains did not go into his hips or thighs, but had remained in the ankles, calves, and feet. Other than bilateral weak feet, the veteran's musculoskeletal system was normal. There was no neurological abnormality found. The veteran submitted his application to reopen his claims of service connection in April 1997. Additional evidence, including written statements to the effect that he experiences residuals of a right ankle sprain, and disabilities of the knees, legs, and spine that are attributable to 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 any current disability of the right ankle, knees, legs, or spine 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). Additionally, the remaining evidence is new in that it was not of record at the time of the April 1947 denial, but it is not material because it does not address the question of whether any residuals of a right ankle sprain or disability of the knees, legs or spine may be attributed to service. VA examination reports, dated in September 1956 and December 1997, show that, other than problems with his toes, the veteran's musculoskeletal system was normal. There was no neurological abnormality found. VA outpatient treatment records, dated from October 1995 to May 1997, show that the veteran was treated for complaints unrelated to the ankle, knees, legs, or spine. As with the other evidence, this evidence does not address whether any current residuals of a right ankle sprain is related to injuries or complaints for which he was treated during service, or whether he has any disability of the legs, knees, or spine that is attributable to service. In short, it does not tend to support the veteran's claims in a manner different from the evidence previously of record. Consequently, the newly received evidence, including evidence of post-service treatment, 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 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. Frostbite 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 (West 1991); 38 C.F.R. § 3.303(a) (1999). 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 (1999); 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) (1999). 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); Murphy v. Derwinski, 1 Vet. App. 78 (1990). 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. The veteran claims that he has residuals of a cold injury to the feet, claimed as frostbite, that were caused by exposure to cold weather during combat. Although his service medical records are negative for any complaints of, treatment for, or diagnosis suggesting such an injury, these records also indicate that he had participated in combat, as evidenced by his being awarded both the Combat Infantryman's Badge and the Purple Heart. Consequently, the Board assumes, for purposes of deciding whether a well-grounded claim has been submitted, that the veteran indeed suffered a cold injury to his feet in service. Nevertheless, the veteran must still present evidence of a nexus between such an in-service injury and any currently shown disability. From the time of the veteran's separation from service in December 1945 until December 1997, an interval of 52 years, there was no suggestion by competent medical evidence that he had any residuals of cold injury to the feet. VA examination reports in November 1946 and September 1956 show that, other than bilateral weak feet or bilateral pes planus, the veteran did not have any foot- related or neurological abnormalities. At a December 1997 VA examination, the diagnoses included history of minimal recent circulatory deficiency, bilateral toes. In short, no competent medical evidence has been presented to show that the veteran currently experiences any residuals of cold injury to the feet that are attributable to his cold exposure in service. The Board has also considered the veteran's written statements regarding the onset of such disorder. However, while he is competent to provide information regarding injury in service, and 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. Consequently, absent the presentation of competent medical evidence showing a link between current disability and service or continued symptoms since service, the veteran's claim 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 claim well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER The application to reopen a claim of service connection for residuals of a right ankle sprain, a spine disability, a knee disability, or a leg disability is denied. Service connection for residuals of cold injury to the feet, claimed as frostbite is denied. MARK F. HALSEY Member, Board of Veterans' Appeals