Citation Nr: 0107775 Decision Date: 03/15/01 Archive Date: 03/21/01 DOCKET NO. 00-03 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for diabetes mellitus. 2. Entitlement to service connection for an acquired eye disorder. 3. Entitlement to service connection for a brain tumor. 4. Entitlement to a compensable disability rating for residuals of a left great toe fracture. 5. Entitlement to a compensable disability rating for hydrocelectomy. 6. Entitlement to automobile and adaptive equipment or for adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Associate Counsel INTRODUCTION The veteran served on active duty from July 1954 to November 1966. This matter is before the Board of Veterans' Appeals (Board) from a June 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The veteran provided testimony at a personal hearing conducted before the RO in June 2000, a transcript of which is of record. At his personal hearing, the veteran asserted that he had developed depression secondary to his diabetes mellitus, among other things. Since it does not appear this claim has been adjudicated below, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. Service connection was denied for diabetes mellitus by an October 1982 rating decision. The veteran was informed of this decision, and did not appeal. 2. A September 1985 decision of the Board confirmed and continued the denial of service connection for diabetes mellitus, among other things. 3. An April 1992 rating decision found that new and material evidence had not been presented to reopen the claim of service connection for diabetes mellitus. The veteran filed a timely Notice of Disagreement with this decision, but did not submit a timely Substantive Appeal following a September 1993 Statement of the Case. 4. The additional evidence submitted to reopen the veteran's claim of service connection for diabetes mellitus bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The April 1992 rating decision finding that no new and material evidence had been presented to reopen a claim of entitlement to service connection for diabetes mellitus is final. 38 U.S.C.A. § 4005(c) (1988) (38 U.S.C.A. § 7105(c) (West 1991)); 38 C.F.R. § 19.192 (1991) (38 C.F.R. § 20.1103 (2000)). 2. New and material evidence having been submitted to reopen the claim of entitlement to service connection for diabetes mellitus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background. The veteran's service medical records show no diagnosis of or treatment for diabetes during his period of active duty. Further, on Reports of Medical History dated in September 1958 and June 1966, the veteran stated that no blood relation or spouse had had diabetes. The veteran underwent a VA medical examination in June 1982, during which he reported a history of diabetes. He also identified treatment for diabetes, among other things, from a Dr. Sepple for the period from 1966 to 1978; a Dr. Paul during 1979; and from a Dr. Cadella, from 1979 to the present. Following examination of the veteran, the examiner diagnosed insulin dependent diabetes mellitus. Service connection was denied for diabetes mellitus by an October 1982 rating decision. The veteran was informed of this decision by correspondence dated in that same month, as well as his right to appeal, and he did not appeal. A July 1984 rating decision denied the veteran's subsequent claims of service connection for various disabilities, and confirmed and continued the denial of service connection for diabetes mellitus. The veteran appealed this decision to the Board. In a September 1985 decision, the Board upheld the denial of service connection for diabetes mellitus, among other things. The Board found that a careful review of the medical records compiled while the veteran was in service revealed no clinical findings which would lead one to conclude that his diabetes mellitus was present in service. Further, the Board found that the first medical documentation of diabetes came during the June 1982 VA medical examination, and that there was no evidentiary basis upon which service connection could be granted for this medical problem. In August 1991, the veteran submitted a request to reopen his claim of service connection for diabetes mellitus. Thereafter, VA medical treatment records were added to the file which covered a period from October 1984 to September 1991. Among other things, records dated in June 1985 reflect evaluation of the veteran's diabetes, which was reportedly first diagnosed in 1970. Subsequent records dated in December 1990, January 1991, June 1991, and July 1991 reflect treatment for a diabetic ulcer. Also on file is a report of a December 1991 VA medical examination, which included diagnoses of diabetes mellitus on insulin; neuropathy; retinopathy; and nephropathy. In an April 1992 rating decision, the RO found, in part, that there was no evidence of a new and material nature to rebut the prior denial of service connection for diabetes, affirmed by the Board decision of September 1985 as not due to service. The veteran submitted a Notice of Disagreement to this decision in October 1992, but did not submit a timely Substantive Appeal after a Statement of the Case was issued in September 1993. Since the April 1992 rating decision, additional VA medical treatment records have been added to the file which cover a period from January 1998 to May 2000. These records show treatment for various medical conditions, including diabetes mellitus. Also on file are three statements from VA physicians, two of which are dated in May 2000, while the other is dated in June 2000. One of the May 2000 statements notes, in part, that the veteran's eye conditions included background diabetic retinopathy. The June 2000 statement noted, among other things, that the veteran had been disabled from work since 1992 because of diabetic related complications (feet). At his June 2000 hearing, the veteran testified, in part, that he was first diagnosed with diabetes in 1960 at the George Air Force Base in Victorville, California. He testified that he was prescribed Orinase tablets at that time. He also testified that he had did not have diabetes prior to service. Further, he testified that he sought post- service treatment immediately after discharge, but that he did not remember the name of the doctor or whether he was still around or not. He maintained that he had received continuous treatment for his diabetes since 1966. Additionally, he contended that he had several problems secondary to his diabetes, including foot problems, eye problems, hypertension, and depression. Later in June 2000, the RO issued a Supplemental Statement of the Case which confirmed and continued the denial of the issues on appeal. In September 2000, the RO issued a Statement of the Case which found that new and material evidence had not been presented to reopen the claims of service connection for hypertension, right great toe, a heart condition, and inguinal hernia. Legal Criteria. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The provisions of 38 C.F.R. § 3.156(a), provide that "new and material evidence" is evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, is not cumulative or 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. Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000. Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the VA with respect to the duty to assist, and supercedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, ___ (2000). However, the Act specifically states that it does not require VA to reopen previously disallowed claims except when new and material evidence has been presented or secured as described in 38 U.S.C.A. § 5108. Id. to be codified at 38 U.S.C.A. § 5103A(f). Analysis. In the instant case, the Board finds that the veteran's hearing testimony regarding his diabetes mellitus tends to provide a "more complete picture" of the circumstances surrounding the origin of the disability. Hodge at 1363. As such, the Board concludes that this additional evidence bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim. Therefore, new and material evidence has been submitted to reopen the claim. 38 C.F.R. § 3.156(a). For the reasons stated below, the Board concludes that a remand is required for a full and fair adjudication of the underlying claim of entitlement to service connection for diabetes mellitus. ORDER New and material evidence having been submitted to reopen the claim of entitlement to service connection for diabetes mellitus, the claim is reopened. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Service connection was granted for status-post hydrocelectomy by the October 1982 rating decision. Thereafter, service connection was granted for residuals of a left great toe fracture by the July 1984 rating decision. Both of these disorders were assigned noncompensable (zero percent) disability ratings, effective April 5, 1982. The Board notes that the veteran has not been accorded any VA medical examinations with respect to his current increased rating claims. In Green v. Derwinski, 1 Vet. App. 121, 124 (1991), the Court held that the duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. See also Littke v. Derwinski, 1 Vet. App. 90 (1990). Accordingly, the Board concludes that these claims must be remanded for examinations to determine the current nature and severity of the veteran's hydrocelectomy and residuals of a left great toe fracture. With respect to the diabetes mellitus claim, the Board notes that the veteran testified at his personal hearing that he has had continuous post-service treatment ever since his discharge from service in 1966. Further, the veteran identified private medical treatment for his diabetes at the time of his June 1982 VA medical examination. However, it does not appear from the documents assembled for appellate review that these records were ever requested or obtained. Thus, the Board concludes that a remand is necessary for the RO to request these records. The Board further notes that the RO has not yet considered whether any additional notification or development action is required under the Veterans Claims Assistance Act of 2000. Consequently, the Board is of the opinion that it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time especially given the fact that the eye disorder and brain tumor claims were denied as not well grounded. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). This is especially true in regard to the acquired eye disorder and brain tumor claims, because the record reflects that these claims were denied as not well grounded. As noted above, the Veterans Claims Assistance Act eliminated the concept of a well-grounded claim. Moreover, the veteran has testified that his eye problems are secondary to his diabetes. Therefore, this issue is inextricably intertwined with the claim of service connection for diabetes mellitus. Regarding the veteran's claim of entitlement to automobile and adaptive equipment or for adaptive equipment only, the Board notes that in order to establish entitlement to financial assistance in purchasing an automobile or other conveyance or adaptive equipment for an automobile, certain criteria must be met. Specifically, in order to establish entitlement to financial assistance in purchasing an automobile or other conveyance, the veteran must have a service-connected disability which includes one of the following: loss or permanent loss of use of one or both feet; or loss or permanent loss of use of one or both hands; or permanent impairment of vision of both eyes to the required specified degree. 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808. In the event that the veteran does not meet the criteria for financial assistance in purchasing an automobile or other conveyance, if he has ankylosis of one or both knees or one or both hips due to service-connected disability, entitlement to adaptive equipment eligibility only is established. 38 U.S.C.A. § 3902(b)(2); 38 C.F.R. § 3.808(b)(iv). As noted above, the veteran testified that he had developed problems with his feet and eyes because of his diabetes. Thus, it appears that this claim is inextricably intertwined with the diabetes mellitus claim. Since it has already been determined that a remand is required regarding the diabetes mellitus and acquired eye disorder claims, the Board will defer making a decision regarding the veteran's claim of entitlement to automobile and adaptive equipment or adaptive equipment only following resolution of these issues. For the reasons stated above, this case is REMANDED for the following: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his diabetes mellitus, hydrocelectomy, left great toe, eye problems, and brain tumor. After securing any necessary release, the RO should obtain those records not already on file. 2. After obtaining any additional records to the extent possible, the RO should schedule the veteran for an examination to determine the current nature and severity of his service- connected hydrocelectomy and residuals of a left great to fracture. The claims folder should be made available to the examiner for review before the examination. 3. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed with respect to the issues on appeal. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. For further guidance on the processing of this case in light of the changes in the law, the RO should refer to VBA Fast Letters regarding the Act, as well as any pertinent formal or informal guidance that is subsequently provided by VA, including, among other things, final regulations and General Counsel precedent opinions. Any binding and pertinent court decisions that are subsequently issued also should be considered. If the benefits requested on appeal are not granted to the veteran's satisfaction, the veteran should be furnished a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals