Citation Nr: 0325063 Decision Date: 09/25/03 Archive Date: 10/02/03 DOCKET NO. 00-07 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from July 1959 to June 1962. In an April 1988 rating decision, the RO denied the veteran service connection for arthritis as a residual of an allergic reaction to penicillin. The veteran was notified of the decision in May 1988. He did not appeal the decision and under the law it became final. The present matter arises before the Board of Veterans' Appeals (Board) on appeal from a December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO denied service connection for arthritis as a residual of an allergic reaction to penicillin. In the December 1999 rating decision, the veteran's claim was denied on the merits, without a finding as to whether new and material evidence had been presented. The Board is required to first consider whether new and material evidence had been presented before the merits of claim can be considered; and the Board can make an initial determination as to whether evidence is "new and material." See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). While the RO has not adjudicated the issue of new and material evidence, the Board's decision is favorable to the veteran on that issue. As such, the Board's consideration of the issue of whether new and material evidence has been presented in the first instance does not prejudice the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board's decision on the merits does not prejudice the veteran, because the RO has already adjudicated the claim on that basis. Additionally, in a December 2000 rating decision the RO denied, among other things, entitlement to secondary service connection for a right orchiectomy and entitlement to special monthly compensation based on anatomical loss of a creative organ. The veteran appealed the decision with respect to those issues. In a January 2002 rating action the RO granted service connection for a right orchiectomy, and also granted special monthly compensation for anatomical loss of a creative organ. FINDINGS OF FACT 1. In an April 1988 rating decision, the RO denied service connection for arthritis as a result of a reaction to penicillin. The veteran did not appeal that decision and under the law the decision became final. 2. The evidence introduced into the record since the April 1988 rating decision, is not cumulative of evidence previously considered, or does bear directly and substantially upon the specific matter under consideration, and is, by itself or in connection with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of the claim. 3. Arthritis has not been associated with a disease or injury in service, and arthritis was not demonstrated within one-year after service. CONCLUSIONS OF LAW 1. The evidence submitted since the previous final decision is new and material, and the veteran's claim of entitlement to service connection for arthritis as a residual of an allergic reaction to penicillin is reopened. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a) (2001). 2. Arthritis was not incurred in or aggravated by active service, or manifested within one year of service. 38 U.S.C.A. §§ 1101,1112, 1113, 1131, 1133, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), was signed into law during the course of this appeal. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In addition, regulations implementing the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2003). They require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Nothing in the Act shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C. § 5103A(f). Prior to the RO's most recent consideration of the issue on appeal, VA amended its regulations to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), the provisions of the regulatory changes merely implement the VCAA and do not provide any rights other than those provided by the VCAA. The provisions implementing the VCAA are applicable to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date. 66 Fed. Reg. 45,620, 45,629. The amended definition of new and material evidence, to be codified at 38 C.F.R. § 3.156(a), is not liberalizing. It applies to any claim to reopen a finally decided claim received on or after August 29, 2001. 66 Fed. Reg. 45,620, 45,629. It does not apply to the veteran's claim to reopen, which was received prior to August 29, 2001. The second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), which relate to the assistance VA will provide to a claimant trying to reopen a finally decided claim, provide rights in addition to those provided by the VCAA. Because VA has no authority to make these provisions retroactively effective, they are applicable on the date of the rule's final publication, August 29, 2001. 66 Fed. Reg. 45,620, 45,629. They are not applicable to the veteran's claim to reopen, which was received before that date. In a March 2001 letter, the RO notified the veteran of the VCAA and the evidence he needed to substantiate his claim and what evidence VA would obtain and what evidence he was responsible for obtaining. VA has thereby met its obligation to notify the veteran of the evidence needed to substantiate his claim and of the evidence he was responsible for obtaining. See Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA requires that VA afford the claimant an examination or obtain a medical opinion when there is a competent evidence that a claimant has a current disability, or persistent or recurrent symptoms of a disability; there are indications that the disability may be associated with active service; and the record is insufficient to decide the claim. 38 U.S.C.A. § 5103A(d). The veteran was provided a VA examination in September 1999. In January 2003 the Social Security Administration (SSA) notified the RO that the medical records associated with the veteran's award of benefits from that agency were no longer available. Additionally, in August 2003, the veteran informed the RO that VA medical records he had identified during his RO hearing in November 2002 did not pertain to his claim for service connection for arthritis but were associated with a claim for service connection for a back disorder. At the veteran's hearing, the decision review officer offered to undertake additional steps to obtain records of the veteran's service in reserve and National Guard units. The decision review officer undertook those steps. Under the VCAA "the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain." 38 U.S.C.A. § 5103A(b) (West 2002). If, after making reasonable efforts to obtain any records the RO is unable to secure same, VA will provide oral or written notice of that fact. The notice will must contain the following information: (i) identify the specific records VA is unable to obtain; (ii) briefly explain the efforts that VA made to obtain those records; (iii) describe any further action to be taken by VA with respect to the claim; and (iv) provide notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e) (2003). The veteran has not been provided notice that his medical records from SSA are not available. The Board notes that it appears that most if not all of the veteran's treatment post service for his arthritis has occurred at VA medical facilities. Those records have been associated with the claims file. Furthermore, during his RO hearing the veteran testified that since his period of active duty, no medical doctor had linked his arthritis to service. The evidence associated with SSA records therefore, if available, would not provide a nexus opinion between the veteran's arthritis and service. As such, the lack of notice to the veteran regarding the unavailability of his SSA records is not prejudicial given that the records could not aid in substantiating the veteran's claim. Bernard, supra. Legal Criteria Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence, for purposes of this decision, is defined as evidence not previously submitted to agency decision makers 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence which must be considered in determining whether there is a basis for reopening the claim is that evidence added to the record since the last disposition in which the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273, 284 (1996). Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury or disease during such service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a), 3.304. In addition, service connection for arthritis may be established based upon a "presumption" that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. Analysis In the April 1988 decision, the RO denied the claim on the basis that arthritis and arthralgias noted in service were acute and transitory, and that any post-service degenerative disorder was not related to service. In September 1999 the veteran underwent a VA joints examination. He was diagnosed with multiple degenerative joint disease. In December 1999, the examiner offered an opinion as to the etiology of the veteran's degenerative joint disease. The Board finds the opinion constitutes competent medical evidence with respect to the onset of the veteran's degenerative joint disease. This evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is so significant that it must be considered to fairly decide the merits of the veteran's claim. Accordingly, it is new and material and the claim is reopened. Merits With respect to a merits analysis, a review of the veteran's service medical records reflects an entrance medical examination in July 1959. On clinical evaluation, there were no complaints, findings, or diagnoses associated with joint pain or arthritis. In June1960 the veteran underwent a right inguinal hernia repair. A hospital summary, for hospitalization from July 15 to July 28, 1960, notes the veteran's admission for painful swollen feet of eight hours duration. The summary reflects the veteran's reported history that after two to three days post-hernia repair he developed a fever of 104 degrees. The cause was determined to be tonsillitis/pharyngitis. The veteran reported being given penicillin and that he did not experience rash or joint pain. He redeveloped a fever 10-15 days following his hernia procedure for which he was again given medication, and was later discharged from the hospital. The July 1960 hospital summary also notes that there was not a report by the veteran of prior swelling of the feet, muscle weakness, or arthralgia. During his hospitalization the veteran complained of multiple joint pain, but clinical evaluation revealed no evidence of heat, tenderness, swelling or limitation of motion. Radiographic study of the veteran's ankles was negative as were other diagnostic tests. A regime of prednisone was given to the veteran and the aches and pains diminished rapidly and he was discharged without complaints. The summary notes that there was a question as to the final diagnosis, although the veteran was felt not to have a collagen disease. It was noted that the veteran could possibly have an early rheumatoid arthritis or palindromic rheumatism, although the diagnosis could not be made with certainty. The diagnosis was arthritis and multiple arthralgias probably due to drug sensitivity. A summary of hospitalization from August 4, 1960, to August 15, 1960, shows that on admission, a physical evaluation revealed the veteran to have some crepitus, tenderness and swelling in various joints. The day following admission, the veteran's joints reportedly no longer revealed any objective findings of joint disease. There were none identified during his remaining period of hospitalization. It was noted that he had continued to have multiple functional complaints without objective or chemical evidence of inflammatory disease. The summary noted in conclusion that the veteran's symptomatology was almost entirely functional. It was also noted that if recurrent joint symptoms occurred, objectively, which would not be unusual with a patient having delayed sensitivity phenomenon to penicillin like the veteran, it was recommended that antihistamines be used in high doses plus salicylate. Steroids were not recommended unless the veteran's condition became serious enough to warrant their use. Furthermore, the physician noted that he saw no advantage in placing the veteran on limitation in his duty status or in profiling since this would reportedly on serve to enhance the functional factors which were obviously present. The summary's diagnosis was hypersensitivity reaction due to penicillin, delayed, manifested by migratory polyarthralgia. A clinical record cover sheet, dated August 15, 1960, reflects the veteran's assignment to duty. A separation medical examination dated in May 1962 does not reflect complaints or findings of swollen or painful joints. On VA examination in December 1972, the veteran's musculoskeletal system was reported as being normal, and there were no complaints of joint pain. Clinical records dated in December 1987 reflect the veteran's complaints of joint pain and stiffness for 20 years. The assessments note arthritis and possible chronic arthritis/degenerative joint disease. A June 1988 mental health clinic note reflected the veteran's complaint of degenerative joint disease, which he related to service and an allergic reaction to penicillin. Clinical records dated in June 1996 and July 1997 document the veteran's complaints of knee pain and a diagnosis of arthritis/degenerative joint disease. The veteran underwent a VA examination in September 1999. He reported his medical history with respect to treatment in service, and that he had continued to have on again and off again joint pain since service, particularly in his knees, shoulders, and low back. Following a clinical evaluation, the examiner's diagnosis noted that the veteran complained of generalized aches and pain in both knees, hips, shoulders and lumbosacral spine. Range of motion of these joints was normal, and X-rays had revealed minimal degenerative joint disease. In December 1999, the examiner offered an opinion that it was "very highly unlikely" that the veteran's arthritis was secondary to treatment with penicillin. There was no evidence in the medical textbooks that that penicillin could precipitate any kind of arthralgia or arthritis. It was the opinion of the examiner that the veteran had developed degenerative joint disease in recent years, and it did not start back in 1960 following the veteran's right hernia surgery. Clinical records dated in February 2000 and January 2001 reflect continued complaints of joint pain and a diagnosis of arthritis. In November 2002, the veteran testified before a Decision Review Officer at the VARO in Roanoke. The veteran reported that a military physician had told him that he would develop early arthritis due to his reaction to penicillin. The veteran stated that he had never had any symptoms of joint pain or arthritis prior to his treatment with penicillin in service. Furthermore, the veteran testified that he remained on light duty for the remaining three years of his enlistment, and that when he returned home following service, his family told him he was stiff and walked like an old man. He stated that since service, no physician had related his joint pain to service. The evidence in favor of the claim includes the July 1960 hospital summary confirming treatment for possible arthritis and arthralgia due to an allergic reaction to penicillin, the August 1960 hospital summary reflective of a review of the veteran's treatment in July 1960 and a diagnosis of delayed hypersensitivity reaction due to penicillin manifested by migratory polyarthralgia, and post-service findings of degenerative joint disease. The evidence against the claim includes the veteran's separation medical examination, which does not reveal complaints or findings of arthritis or joint pain. The first documented post-service treatment for joint pain occurred in 1987, some 25 years following service. Furthermore, the VA examiner essentially concluded that the current arthritis was unrelated to penicillin or any other incident of service. There is no other post-service evidence linking the current arthritis to service, or showing that it was present within the one-year presumptive period. While the veteran has testified that a military doctor informed him that he would continue to have problems with arthritis following his treatment with penicillin, "what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Similarly the veteran is not competent to render an opinion that current arthritis is related to penicillin use in service. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (a lay person is not competent to render an opinion as to medical causation). The veteran has also testified to a continuity of symptomatology since service. However, this history must be viewed in light of the lack of any complaints in the service medical records after August 1960. On the December 1972 VA examination the veteran did not report a continuity of symptomatology, the musculoskeletal system was found to be normal. Further, the VA examiner concluded in 1999, that the veteran's arthritis was of recent onset. While a link between a joint disorder and penicillin use was suspected in service, this evidence is outweighed by the VA examiner's opinion, which was the product of a review of the service and post-service record and current medical literature. The in-service opinions were equivocal. The veteran's subsequent return to duty without additional findings in service, also suggests that the penicillin use did not lead to a chronic disability. Therefore, the Board concludes that the evidence against the claim outweighs the evidence in favor. As such, the Board must deny the claim. ORDER New and material evidence having been presented, the claim for service connection for arthritis is reopened. Entitlement to service connection for is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2