Citation Nr: 0710542 Decision Date: 04/11/07 Archive Date: 04/25/07 DOCKET NO. 05-22 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lumbosacral spine disorder. 3. Entitlement to service connection for residuals of a head injury. 4. Entitlement to service connection for a left lower leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant; his wife ATTORNEY FOR THE BOARD B. Buck, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas, which denied entitlement to the benefits currently sought on appeal. FINDINGS OF FACT 1. Service connection was denied for a cervical and lumbosacral spine disorder by rating decision dated in February 1995. The veteran did not perfect an appeal of this decision. 2. The last final disallowance of the cervical and lumbosacral spine claims was by rating decision in October 1995. 3. Evidence received since October 1995 does not relate to an unestablished fact necessary to substantiate the claims for service connection; instead, it is cumulative and redundant of evidence previously submitted. 4. The preponderance of the evidence establishes that the veteran was intoxicated from drinking alcohol in September 1966, and that any residual disability from falling from a second story window that day was proximately and immediately due to the veteran's intoxication from the drinking of alcohol. 5. A current diagnosis of a left lower leg disorder is not demonstrated by the record. CONCLUSIONS OF LAW 1. The October 1995 rating decision is final. 38 U.S.C.A. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.160, 20.302, 20.1103 (1994). 2. New and material evidence having not been submitted, the application to reopen the previously denied claim of service connection for a cervical spine disorder is denied. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). 3. New and material evidence having not been submitted, the application to reopen the previously denied claim of service connection for a lumbosacral spine disorder is denied. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). 4. Any residuals of a head injury sustained by this veteran were not incurred or aggravated in the line of duty. 38 U.S.C.A. §§ 105, 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2006). 5. A left lower leg disorder was not incurred or aggravated in the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in August 2003, the agency of original jurisdiction (AOJ) satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2006). Specifically, the AOJ notified the veteran of information and evidence necessary to reopen the previously denied claims, referencing in particular why the veteran's claims had been denied, and what types of evidence were necessary to reopen those claims. Information and evidence referable to establishing the underlying service connection claims was also provided. This notice included the types of information and evidence that VA would seek to provide and that which the veteran was expected to provide. In February 2005, the veteran was instructed to submit any evidence in his possession that pertained to his claims. In response, the veteran submitted further lay evidence in April 2005. Although this last notice was delivered after the initial denial of the claims, the AOJ subsequently readjudicated the claims based on all the evidence in May 2005, without taint from prior adjudications. Thus, the veteran was not precluded from participating effectively in the processing of his claims and the late notice did not affect the essential fairness of the decision. With respect to the service connection claims, because service connection is denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure to notify prejudice to the veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2006). Service medical records have been associated with the claims file. VA has requested evidence from each new source identified by the veteran. As will be discussed in detail below, new and material evidence has not been submitted sufficient to reopen the veteran's previously disallowed claims. VA's duty to assist has been fulfilled with respect to those claims. Referable to the remaining service connection claims, the veteran has not been afforded a VA medical examination. One, however, is not necessary in this case. As will be fully discussed below, in the head injury claim, the record does not establish that the veteran suffered a pertinent event, injury, or disease in service in the line of duty. In the case of the leg claim, the information and evidence of record does not contain competent evidence of a current disability. The duty to assist has been fulfilled. See 38 C.F.R. § 3.159(c)(4) (2006). New & Material Evidence The veteran seeks service connection for disorders of the cervical and lumbosacral spine. By rating decision dated in February 1995, the RO denied the veteran's claims on the basis that service medical records did not show treatment for, or diagnosis of, a disorder of any segment of the spine. Additionally, the veteran's private treating physician submitted a negative nexus opinion in August 1995, finding that the veteran's then-current complaints referable to the spine were not related to his fall in service. The RO readjudicated the claims in an October 1995 rating. The veteran did not perfect an appeal with respect to either of these rating decisions. The veteran attempted to reopen the claims by application received in June 2003. The RO declined to reopen them in March 2004 for a lack of new and material evidence. The veteran filed a timely appeal. Applicable law provides that the February and October 1995 RO decisions which were unappealed became final. 38 U.S.C.A. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.160, 20.302, 20.1103 (1994). Once a decision becomes final, new and material evidence is required to reopen the claim which was denied. 38 U.S.C.A. § 5108 (West 2002). "New" evidence is existing evidence not previously submitted to agency decisionmakers. "Material" evidence is 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 neither be 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. See 38 C.F.R. § 3.156(a) (2006). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The law provides that evidence proffered by the claimant to reopen his claim is presumed credible for the limited purpose of ascertaining its materiality. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). Three groups of evidence have been submitted in support of the veteran's claims: treatment reports from both private and VA sources; hearing testimony; and written lay statements. The available treatment reports establish that the veteran has current disorders of the cervical and lumbosacral spine. See October 1997 VA x-ray report, showing degenerative disc disease of the cervical spine; see also, VA outpatient clinical record dated in July 2004, citing a prior magnetic resonance imaging (MRI) scan in 2000 demonstrating minimal disc bulging in the lumbosacral spine. These records are new, as they have not been considered by the adjudicating agency. However, they are not material, as the records do not link the disorders to the veteran's service, nor make any comment on the etiology of such disorders. Therefore, the current treatment records, while new, do not relate to the unestablished fact of a medical nexus, which is necessary to substantiate the claims. They are not sufficient to reopen the claims. With respect to the veteran's April 2006 hearing testimony, it is new, as it was not before the agency prior to the October 1995 rating decision; however, it is not material for two reasons. First, it is substantially the same as statements that he submitted prior to the October 1995 rating decision. See, e.g., VA examination report dated in January 1995; see also, notice of disagreement received in August 1995. The 2006 transcript shows that he reiterated his previously made contention that he has chronic neck and back disorders that were acquired while in military service. These statements do not, by themselves or when considered with the previous evidence of record, help establish a fact necessary to substantiate either claim - namely medical evidence of a nexus to the service incident. Instead, they are cumulative and redundant of statements made prior to the first denial. Second, while his statements are presumed credible, they still are not competent on the issue of medical nexus. Specifically, such assertions finding a causal link between his current disorders and the fall in service are afforded no probative weight in the absence of evidence that the veteran has the expertise to render opinions about medical matters. Although the veteran and other lay persons are competent to testify as to his in-service experiences and symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence does not reflect that the veteran possesses medical knowledge which would render his opinion as to etiology and a medical diagnosis competent. Regarding the written lay statements which have been submitted from both the veteran's wife and a friend, they too are new, but not material, for the same reasons. The friend's statement in April 2005 indicates that the veteran "had an accident" in service and that when he came home he was "unhappy." It further states that he now "walks funny and falls down." The veteran's wife's statements, in an April 2005 letter and her April 2006 hearing testimony, restate that the veteran has "complained for years of aches and pains in his head, neck, and around his heart" and then further describes his current symptoms. These are areas of information covered by the veteran's statements made prior to the October 1995 rating decision. Thus, while new, they are not material, because they are cumulative and redundant. In sum, the evidence received since the last final disallowance in October 1995 does not relate to an unestablished fact necessary to substantiate the claims. Further, it is cumulative and redundant of evidence previously submitted. For these reasons, it cannot be considered material. Because evidence sufficient to reopen the veteran's previously denied claims has not been submitted, his application to reopen the claims is denied. Service Connection The veteran also seeks service connection for residuals of a head injury and a left leg disorder, which he contends initially manifested in service. In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Residuals of a Head Injury The veteran contends that the injuries he sustained in service when he fell out of a two story window resulted in a current disability involving dizziness, vertigo, and headaches. Service medical records reveal that in late September 1966, the veteran, while intoxicated, jumped from a second story window of a hotel. He received treatment for a scalp laceration without artery or nerve involvement and a possible concussion. A line of duty investigation was undertaken in December 1966. Based on medical records at the time of the fall, contemporaneous statements by the veteran, and eye witness accounts, it was determined that the veteran was "highly intoxicated" at the time. Although "intentional misconduct" was found to be the proximate cause of the medical diagnosis, the reviewing official referred to the veteran's prior history of a suicide attempt and recommended further psychological examination prior to the line of duty determination. The follow-up examination was conducted in February 1967, after the veteran had attended four group therapy sessions. It was determined that the veteran had "no psychosis, psychoneurosis, or organic brain disorder." It was noted further that he was "without mental disorder at the time of the alleged incident" and that he was "drinking heavily but was capable of general, if not specific, intent." An official follow-up line of duty determination was not made. An injury incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty, unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. § 3.1(m) (2006). A service department finding that injury, disease, or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m) (2006). "Willful misconduct" is an act involving conscious wrongdoing or known prohibited action. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1(n) (2006). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance, or under conditions which would raise a presumption to that effect, will be considered willful misconduct. 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. 38 C.F.R. § 3.301(c)(3) (2006). 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. 38 C.F.R. § 3.301(d) (2006). In this case, the veteran does not deny that he deliberately drank intoxicating beverages in excess on the occasion in September 1966 when he exited the building through a second story window. See hearing transcript, dated in April 2006. Nor does he contend that the residuals of a head injury for which he now claims service connection are the result of any other occasion in service apart from this incident. See id. Although the initial line of duty investigation noted willful misconduct, it reserved judgment until further examination. That examination found the veteran to be operating with intent on the night in question, and wholly free of psychological or organic pathology. Based on a thorough review, the preponderance of the evidence establishes that the veteran was intoxicated from drinking alcohol on the night in question in September 1966. It also establishes that any residual disability sustained from falling from the second story window at that time was proximately and immediately due to his intoxication from the drinking of alcohol. Under the applicable VA regulations described above, the veteran's actions fit the definition of willful misconduct and alcohol abuse. Thus, any disability resulting from such conduct cannot be considered service- connected. Service connection for residuals of a head injury is denied. Left Lower Leg Disorder The veteran contends that while in basic training for his military occupational specialty of pole lineman, he fell from a pole, striking his left Achilles tendon area with the spike from his boot. Service medical records confirm that in early September 1966, the veteran presented with complaints of pain in the left Achilles tendon. Physical examination was essentially negative. No trauma was noted. The veteran had full range of motion of the ankle. No diagnosis was rendered. The balance of the veteran's service medical records, to include his October 1967 separation examination, is negative for treatment of a left lower leg disorder. Current treatment records do not demonstrate a current diagnosis of the left lower extremity in the area of the Achilles tendon. In fact, they show that on two occasions (in October 2002 and July 2003), the veteran reported left knee pain, and once in January 2004, he reported generalized bilateral foot pain. In all, the evidence does not demonstrate that the veteran has a current diagnosis of a disability of the left lower extremity. The Court has specifically disallowed service connection where there is no present disability: "[c]ongress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim [for service connection]." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt provision does not apply. Because a diagnosis has not been shown, service connection is not warranted. ORDER New and material evidence having not been submitted, the veteran's application to reopen his claim of entitlement to service connection for a cervical spine disorder is denied. New and material evidence having not been submitted, the veteran's application to reopen his claim of entitlement to service connection for a lumbosacral spine disorder is denied. Entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for a left leg disorder is denied. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs