Citation Nr: 0506740 Decision Date: 03/09/05 Archive Date: 03/21/05 DOCKET NO. 00-07 244A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for Crohn's disease, to include claimed as due to Agent Orange exposure. 2. Whether new and material evidence has been obtained to reopen the claim for entitlement to service connection for multiple sclerosis (MS), to include claimed as due to Agent Orange exposure. 3. Entitlement to specially adapted housing or special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The appellant had active duty from September 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The claims file is under the jurisdiction of the RO in Louisville, Kentucky. The case was previously before the Board in January 2003, at which time the claim for entitlement to service connection for Crohn's disease was reopened. The case was again before the Board in August 2003, at which time it was Remanded to obtain additional medical records and for other development. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. The issues of entitlement to service connection for Crohn's disease, the reopened claim of entitlement service connection for multiple sclerosis, and the veteran's claim of entitlement to a specially adapted housing or special home adaptation grant are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By rating decision dated in January 1997, the appellant's claim of entitlement to service connection for MS was denied and the appellant did not challenge such denial by the filing of a notice of disagreement. 2. Additional service medical records have been received since the January 1997 decision. CONCLUSION OF LAW Since the RO's January 1997 decision, new and material evidence has been received, and the claim of entitlement to service connection for multiple sclerosis (MS) is reopened. 38 U.S.C.A. §§ 1110, 1131, 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it should be noted that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist. On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (now codified at 38 C.F.R. § 3.159). The Board, however, is satisfied that all necessary development pertaining to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for MS has been completed. The Board is confident in this assessment because the evidence as presently constituted is sufficient in establishing a grant of the benefit sought on appeal (that is-reopening of the claim). Therefore, any outstanding development not already conducted by VA is without prejudice; hence, any deficiencies in the duties to notify and to assist constitute harmless error. New and Material Evidence A claim of entitlement to service connection for MS was previously denied by an unappealed rating decision dated in January 1997. Inasmuch as the veteran did not perfect a timely appeal, the RO's decision is final. 38 U.S.C.A. § 7105. Pursuant to 38 U.S.C.A. § 5108 the veteran's claim may be reopened if new and material evidence has been presented. New evidence submitted to reopen a claim will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must review all evidence submitted since the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). If the Board's decision is favorable to the veteran, his claim must be reopened and decided on the merits. See Glynn v. Brown, 6 Vet. App. 523, 528-29 (1994). The issue of new and material evidence must be addressed in the first instance by the Board because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board were to adjudicate the claim on the merits without resolving the new and material evidence issue, its actions would violate its statutory mandate set forth in 38 U.S.C.A. §§ 7104(b) and 5108. If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Id. Additional service department records that have been located subsequent to a final rating determination, by definition, constitute new and material evidence. 38 C.F.R. § 3.156(c). That provision is silent as to whether any newly discovered service records must be pertinent to a particular claimed disorder that has been previously denied. In this case, additional service medical records were forwarded for association with the claims file in April 2004. The subject records reflect treatment of the veteran from October 1966 for an upper respiratory infection, (diffuse) acute-treated, cured. Although the records do not pertain to MS, a liberal construction of Section 3.156(c) would result in consideration of such records as new and material evidence. Accordingly, the claim is reopened. If the claim is reopened, then, the ultimate credibility or weight to be accorded such evidence must be determined as a question of fact. Justus v. Principi, 3 Vet. App. 510 (1992). With the veteran's claim having been reopened, a full de novo review and weighing of all of the evidence by the RO is in order as more particularly set forth in the remand portion of this decision. ORDER The veteran's claim of entitlement to service connection for MS is reopened. To this extent, the appeal is granted, subject to the directions set forth in the following remand portion of this decision. REMAND The veteran had complaints of abdominal/gastrointestinal pain documented during military service in December 1968, which complaints were ultimately attributed to constipation. His representative has asserted in May 2002 that those particular manifestations require the VA to conduct additional medical inquiry to ascertain whether that symptomatology led to his current diagnosis of Crohn's. The U.S. Court of Appeals for Veterans Claims (Court) has recently held that where there is an in-service notation of a potentially relevant abnormality, a medical opinion may be required to aid in substantiating the claim. Duenas v. Principi, 18 Vet. App. 512 (2004). Accordingly, the Board considers that a medical opinion would materially assist in the development of this appeal. An adjudicator must follow a two-step process in evaluating previously denied claims. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. With respect to the MS claim, the Board has jurisdiction of both parts of the two-step Manio analysis in new and material evidence cases. Where, as here, the RO initially found no new and material evidence to reopen and the Board finds that such new and material evidence has in fact been received (thus reopening the claim), then the case must be remanded to the RO for the second step of the Manio analysis (a de novo review of the entire record) unless there would be no prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board observes that, rather than advancing the claim broadly on the merits, the veteran's representative has argued the more limited position that "new and material evidence" had been submitted vis-à-vis the MS claim. See e.g. Informal Hearing Presentation of January 2005. Consequently, the Board concludes that the veteran would be prejudiced unless an opportunity were afforded to the veteran to advance that claim on the merits. Furthermore, the veteran has also claimed that the MS is secondary to the colitis, and, if service connection were ultimately granted for colitis, that would affect consideration of this claim. In this decision, for the above reasons, the Board is remanding the appellant's claims of entitlement to service connection for Crohn's disease and multiple sclerosis. Because his claim of entitlement to a specially adapted housing or special home adaptation grant is potentially linked to the resolution of these service connection claims, the Board is of the opinion that the claims should be considered together. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is REMANDED for the following development: 1. The claims file should be referred to a physician with specialization in gastroenterolgy. The examiner is requested to review the claims folder, including the service medical records. Based on this review, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the veteran's condition presently diagnosed as Crohn's disease is etiologically related to, and/or has been aggravated by, the veteran's service, to include the allegation that it is due to Agent Orange exposure. The examiner's attention is invited to clinical records of abdominal/gastrointestinal pain documented during military service in December 1968, which were finally assessed as attributable to constipation. If the opinion cannot be provided without resort to speculation, it should be so stated. If the physician believes that an examination is warranted, the veteran should be scheduled for an examination. The complete rationale for all opinions expressed must be provided. 2. The examination report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, corrective procedures must be implemented. 3. After undertaking any other development deemed necessary, the case should again be reviewed on the basis of the additional evidence and any additional argument. If the benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case, and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development and to afford due process, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ MICHELLE L. KANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs