Citation Nr: 0110212 Decision Date: 04/06/01 Archive Date: 04/11/01 DOCKET NO. 00-11 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for disability manifested by calf muscle/leg pain. REPRESENTATION Appellant represented by: Fleet Reserve Association INTRODUCTION The veteran had active service from March 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2000 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. An unappealed October 1995 RO decision denied service connection for disability manifested by calf muscle/leg pain. 2. Evidence received since the October 1995 RO decision is new and bears directly and substantially on the matter under consideration, and is so significant that it must be considered in order to fairly decide the claim. CONCLUSION OF LAW The October 1995 RO decision is final; new and material evidence has been received and the claim of entitlement to service connection for disability manifested by calf muscle/leg pain is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, §§ 3(a), 4, 114 Stat. 2096, 2097-99 (2000) (to be codified as amended at 38 U.S.C. §§ 5103A, 5107); 38 C.F.R. § 3.156 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board observes that the VA's duty to assist claimants has recently been reaffirmed and clarified. See VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000). In light of the Board's favorable decision, with respect to finding that new and material evidence has been submitted to reopen the veteran's claim for service connection for disability manifested by calf muscle/leg pain, the Board concludes that the VA has complied with the VCAA as it relates to the reopening of the veteran's claim. An October 1995 RO decision denied service connection for disability manifested by calf muscle/leg pain. The veteran was notified of that decision and his appellate rights, but he did not initiate an appeal and that decision is final. The evidence of record prior to the October 1995 RO decision included the veteran's service medical records, private hospital records, lay statements, and statements from the veteran. The evidence also included reports of August 1994 VA orthopedic and nephrology examinations. The veteran's claim was denied in October 1995 on the basis that the evidence did not demonstrate that the veteran had chronic disability during service or that any currently manifested disability was related to his active service, including any injury he experienced as a result of a reported explosion while on board ship. Subsequent to the October 1995 RO decision, the veteran has submitted additional statements, as well as statements from a private physician, indicating that it was the physician's opinion that the veteran had current disability that is related to his reported blast injury sustained in December 1944, as well as being related to spinal fluid leakage that occurred during the veteran's active service. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (2000). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d) (2000). If a claim for service connection was previously denied, a veteran must submit new and material evidence in order to reopen his claim. 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. Under the test established by Elkins v. West, 12 Vet. App. 209 (1999) (en banc), it must first be determined whether the veteran has presented new and material evidence. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), it was noted that while "not every piece of new evidence is 'material'; we are concerned, however, that some evidence may well contribute 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 rating decision." With consideration of competent medical evidence identifying current disability as being the cause of the veteran's leg pain and relating this current disability to the veteran's reported blast injury in December 1944, the Board concludes that this evidence is new and that it contributes to a more complete picture of the circumstances surrounding the alleged origin of current disability that results in the veteran's leg pain. Therefore, it is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. ORDER New and material evidence having been submitted, the appeal to reopen the claim of entitlement to service connection for disability manifested by calf muscle/leg pain is granted. To this extent only, the appeal is granted. REMAND Statements received from the veteran and his brother, in March 1995, reflect that the veteran had received treatment from H. Merliss, .D.O., a private osteopath, from 1946 to 1987. The veteran indicated that Dr. Merliss was no longer in practice, but it is unclear if this reference to no longer being in practice means that treatment records are unavailable. Reference was also made to private hospital care in 1973 and these records have been associated with the veteran's claims file. Letters from E. G. Aguilar, M.D., a private physician, dated in June 1999 and March 2000, have been received. A consent for release of records, received in June 1999, reflects that the veteran has been receiving treatment from Dr. Aguilar from 1998 until the present. The record does not indicate that an attempt has been made to obtain treatment records from Dr. Aguilar. In a December 1995 statement, the veteran indicates that he was injured in December 1944, while on board a ship docked in Antwerp, Belgium, when a V2 bomb hit the ship. He indicates that approximately 3 1/2 months later, while on board an aircraft carrier, he received spinal injections to relieve leg pain. The record does not indicate that an attempt has been made to have the veteran identify the names of the above referenced vessels or that an attempt has been made to obtain the veteran's service personnel records to determine what ships he was assigned to during the pertinent timeframe. 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 VCAA. This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA could not 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 VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In light of the above, the appeal is REMANDED to the RO for the following: 1. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. 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. 2. The RO should attempt to obtain the veteran's service personnel records. 3. The RO should contact the veteran and request the address for H. Merliss, D.O. After obtaining any necessary authorization, the RO should contact Dr. Merliss and request copies of all records relating to any treatment of the veteran from 1946 until 1987, unless the veteran does not reply or indicates that such records are not available. 4. After obtaining any necessary authorization, the RO should contact E. G. Aguilar, M.D., and request copies of all records relating to treatment of the veteran from 1998 until the present. 5. The RO should contact the veteran and request that he identify the name of the vessel to which he was assigned in December 1944 when the vessel was struck by a V2 bomb resulting in his reported injury as well as the name of the aircraft carrier to which he was assigned approximately 3 1/2 months thereafter and upon which he was administered spinal injections. 6. The RO should attempt to ascertain, based upon the veteran's service personnel records and his response to the question previously asked, the identity of the vessel to which he was assigned in December 1944 and the identity of the aircraft carrier to which he was assigned approximately 3 1/2 months thereafter. If the identity of the vessel to which he was assigned in December 1944 is ascertained, the RO should attempt to obtain copies of the deck logs for that vessel for the month of December 1944. If the identity of the aircraft carrier to which the veteran was assigned approximately 3 1/2 months thereafter is obtained, the RO should attempt to obtain copies of any service medical records that may have been created as a result of treatment provided the veteran aboard that aircraft carrier. 7. Then, the veteran should be afforded an appropriate VA examination to determine the existence and etiology of any current disability manifested by calf muscle/leg pain. The claims file must be made available to the examiner for review and the examination report should reflect that such review was accomplished. All necessary tests and studies should be accomplished and all findings reported in detail. The examiner is requested to offer an opinion as to whether it is at least as likely as not that the veteran currently has disability that is manifested by calf muscle/leg pain. If such disability is identified, the examiner is requested to offer an opinion as to whether it is at least as likely as not that such disability existed during the veteran's active service from March 1943 to November 1945 or is related to his active service. A complete rationale should be provided for all opinions given. 8. Then, after ensuring that the provisions of the VCAA have been complied with, the RO should readjudicate the issue on appeal on a de novo basis. 9. If the benefit sought on appeal is not granted to the veteran's satisfaction, both the veteran and his representative should be provided a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran until he is otherwise notified. 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). 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. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals