Citation Nr: 0329147 Decision Date: 10/27/03 Archive Date: 11/05/03 DOCKET NO. 02-18 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for rheumatoid arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James Ringle, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to July 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2001 rating decision of the Department of Veterans Affairs (VA), Muskogee, Oklahoma regional office (RO). FINDINGS OF FACT 1. A June 1999 rating decision denied reopening the claim for service connection for rheumatoid arthritis; the veteran was notified of the RO's decision and he did not file a timely appeal. 2. The evidence received since the June 1999 rating decision consists of private medical records including a physician's nexus opinion regarding the veteran's rheumatoid arthritis and his period of service; the evidence bears directly and substantially upon the specific matters under consideration, and it is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. A June 1999 rating decision that determined that new and material evidence had not been submitted sufficient to reopen a claim of entitlement to service connection for rheumatoid arthritis is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1998); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2003). 2. New and material evidence has been submitted since the final June 1999 rating decision and the claim of entitlement to service connection for rheumatoid arthritis is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that a November 1976 rating decision denied the veteran's initial claim for service connection for rheumatoid arthritis. The veteran was notified of the RO's decision in November 1976, and did not appeal. Thus, the decision is final. A June 1999 rating decision denied the veteran's request to reopen his claim for service connection for rheumatoid arthritis, because no new and material evidence had been received. The veteran was notified of the RO's decision in June 1999. The veteran did not appeal the decision. Thus, that decision is final as well. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1998); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2003). As the last final disallowance of the appellant's claim of entitlement to service connection for rheumatoid arthritis was a June 1999 rating decision, the Board must determine whether new and material evidence has been received subsequent to the June 1999 rating decision sufficient to reopen the claim. The June 1999 rating decision found that the evidence submitted with the claim was not new and material because it was not directly relevant to the issue considered. Since the June 1999 rating decision is final, the veteran's current claim of service connection for rheumatoid arthritis may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. See 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The regulation regarding new and material evidence was amended. 38 C.F.R. § 3.156(a) (2003). This amendment applies only to claims to reopen a finally decided claim received on or after August 29, 2001. The veteran's request to reopen his claim of entitlement to service connection was filed in December 2000, prior to that date. Therefore, the amended regulation does not apply. New and material evidence means 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) (2003); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. The RO determined in its June 1999 decision that the evidence did not establish that rheumatoid arthritis was etiologically related to service. In order to reopen the claim, the veteran would have to submit new and material evidence. Such evidence would have to tend to prove the merits of the claim as to each essential element that was a specified basis for the previous denial. Evans, supra. Thus, in this case, to be new and material the evidence would need to be probative of the questions of whether there was any objective evidence of inservice incurrence of rheumatoid arthritis and/or a nexus between current pathology and the period of service. The evidence received since the June 1999 decision consists of private medical records, including a nexus opinion dated November 2000. In the report, the examiner stated "It is my opinion after reviewing the medical records, multiple positive RA Latex tests, and positive surgical findings, that [veteran] does indeed have rheumatoid arthritis and that it was diagnosed while he was on active duty." This nexus evidence was not previously of record, and it bears directly and substantially upon the specific matters under consideration. 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 (2003). Accordingly, the veteran's claim for service connection for rheumatoid arthritis is reopened. ORDER New and material evidence having been received, the veteran's claim for service connection for rheumatoid arthritis is reopened. To this extent only, the claim is granted. REMAND While the veteran has submitted evidence sufficient to reopen his claim, the Board is of the opinion that additional evidence is necessary to properly consider the merits of the claim for service connection for rheumatoid arthritis. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The court found that the 30- day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. The veteran's Report of Medical History, dated June 1972, indicated that the veteran had a chronic left knee problem, and that a private physician had diagnosed the veteran as having rheumatism in the knee. The veteran's service entrance examination, dated July 1972, stated that the veteran underwent an x-ray examination for arthritis, and that the result was negative. An inservice medical record dated December 1975 indicated that the veteran's RA Latex was strongly reactive and that this feature would be suspicious for rheumatoid arthritis or some other type of Collagen disorder. A VA examination conducted in November 1976 concluded that the veteran did not appear to have rheumatoid arthritis at that time, and that positive Latexes can be false positives. A variety of inservice medical records including those dated December 1974, April 1975, July 1975, and February 1976 indicated that the veteran had a history of knee, back, and shoulder pain while in service. An inservice radiographic report dated January 1975 indicated that no joint abnormality was identified. Another radiographic report dated December 1975 was negative for any rheumatoid changes. A January 1975 inservice medical report conducted by a physician's assistant stated "arthritis" but did not offer a clear and definitive diagnosis by a physician, and no x-ray findings confirming the diagnosis were noted. A private medical report dated November 2000 stated that the veteran had rheumatoid arthritis and that it was diagnosed while he was on active duty, but it is unclear if the examining physician reviewed the veteran's claims folder in its entirety and interpreted the documents therein accurately. Additionally, a VA medical examination conducted in January 2001 indicated that the veteran exhibited clear-cut evidence of joint problems which were progressive while on active duty, and that the veteran had what appeared to be very severe rheumatoid arthritis. The physician stated that he had reviewed the veteran's medical records, yet there is no indication that the veteran's claims folder had been transferred to the VA examining physician for review. The Board is of the opinion that another VA examination of the veteran, and subsequent opinion, with consideration of the medical evidence noted above, is necessary to properly evaluate the veteran's claim. Accordingly, the case is REMANDED for the following actions: 1. The RO must review the claims folder and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. 2. The RO should also schedule the veteran for a VA rheumatology examination to determine the nature and etiology of any rheumatoid arthritis. The examiner should review all relevant documents currently associated with the claims folder, with particular emphasis specifically placed on the following: veteran's report of medical history dated June 1972; inservice RA Latex test report dated December 1975; inservice radiographic reports dated January and December 1975; January 1975 medical report by physician's assistant J.W.; November 1976 VA medical rating examination; private medical report dated November 2000; VA medical examination dated January 2001. The examiner should then render an opinion as to whether the veteran has rheumatoid arthritis or arthritis, and if so, whether it is more likely, less likely or as likely as not that it is related to the veteran's period of active duty. Any relevant tests should be conducted, and a complete rationale should be given for all opinions and conclusions expressed. The claims file and a copy of this REMAND must be made available to the examiner prior to the requested examination. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2003). After the above requested action has been completed, the RO should review the appellant's claim of entitlement to service connection for rheumatoid arthritis. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant, and he should be afforded the appropriate period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. 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 2002) (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. 8.43 and 38.02. ______________________________________________ THOMAS J. DANNAHER 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