Citation Nr: 0726237 Decision Date: 08/22/07 Archive Date: 08/29/07 DOCKET NO. 05-28 687A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for panhypopituitarism has been received and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1960 to February 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The veteran had a hearing before the Board in February 2007 and the transcript is of record. The Board received additional evidence from the veteran in October 2006, after the file was sent to the Board. A supplemental statement of the case (SSOC) was not issued, but this is not necessary since the veteran included a waiver of local jurisdictional review. The Board notes that the veteran filed his June 2005 substantive appeal for "a head injury" shortly after the RO issued an April 2005 Statement of the Case (SOC) denying claims of entitlement to service connection for skin tumors, a back condition and total disability based on individual unemployability (TDIU). The June 2005 substantive appeal specifically withdrew his skin claim and continued his appeal as to "the issue of the head injury." Although not specifically withdrawn by the veteran, no substantive appeal was filed for his back condition or TDIU claim and, indeed, the veteran agreed at his February 2007 Board hearing that entitlement to service connection for panhypopituitarism was the only issue on appeal. Accordingly, the TDIU claim and claims of entitlement to service connection for a skin and back condition are considered withdrawn and not properly before the Board here. The September 2004 rating decision, in pertinent part, denied the veteran's panhypopituitarism claims on the merits. Although the rating decision categorized the denial of service connection for panhypopituitarism as a finding of no new and material evidence, the analysis and subsequent July 2005 Statement of the Case (SOC) clearly show the RO considered the merits of the claim in its denial. Regardless of the RO's actions, however, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claims. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Thus, the issue on appeal has been characterized as shown above. FINDINGS OF FACT 1. An unappealed January 1992 rating decision, in pertinent part, denied service connection for panhypopituitarism finding no current diagnosis of the condition and no in- service incurrence or aggravation of the condition. 2. Evidence received since the January 1992 decision raises a reasonable possibility of substantiating the claim. 3. The veteran's hypopituitarism is due to his military service CONCLUSIONS OF LAW 1. The January 1992 rating decision that denied the claim for entitlement to service connection for panhypopituitarism is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 20.1100 (2006). 2. Evidence received since the January 1992 rating decision is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2006). 3. Hypopituitarism was incurred during the veteran's active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, and 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). New and Material Evidence Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). The veteran alleges that during his one year service in Vietnam from December 1969 to December 1970, he worked as a paratrooper. He also alleges head trauma during that time after a helicopter crash, which is allegedly responsible for his current diagnosis of hypopituitarism. The RO denied the veteran's claim in January 1992 finding the record silent as to any current diagnosis of the condition and the service medical records silent as to the veteran's alleged injury. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a). Here, no correspondence was received during the appellate time period and, therefore, the January 1992 rating decision is final. At the time of the January 1992 decision, the record included service medical records, which included extensive complaints and treatment for severe headaches, fainting spells and associated paresthesias, as well as VA records for unrelated conditions. Since that time, potentially relevant evidence received includes private and VA outpatient treatment records from 1986 to 2006, the veteran's own testimony and a submitted statement from one other veteran who served as the veteran's commanding officer in 1974. Except as provided in Section 5108 of this title, when the RO disallows a claim, the claim may not thereafter be reopened and allowed and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. Under 38 U.S.C.A. § 5108, "[i]f 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." 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective August 29, 2001. The instant claim to reopen was filed after that date, and the revised definition applies. Under the revised definition, "new evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, the veteran was denied service connection based on a lack of evidence showing a current diagnosis of the condition. For evidence to be new and material in this matter, it would have to tend to show that the veteran has a current condition related to any remote incident of service. The Board concludes the newly submitted material does show such evidence. Currently, the VA outpatient treatment records include a diagnosis of hypopituitarism related to a helicopter crash. The veteran also submitted private treatment records, most notably from Dr. Aron. Dr. Aron indicates the veteran has been diagnosed with hypopituitarism since the 1980s and specifically opines the condition is due to head trauma incurred in a military helicopter crash. Again, the RO denied the veteran's claims previously based on a lack of current diagnosis and a lack of evidence confirming a helicopter. The veteran submitted a statement from his former commanding officer who further confirms the veteran's helicopter crash in 1969 although, admittedly, during a time when she was not his commanding officer or in his unit. The new evidence also shows administrative data confirming the veteran served in combat while stationed in Vietnam from December 1969 to December 1970. His DD-214, additionally, indicates awarded medals, such as the Bronze Star Medal with one Oak Leaf Cluster, usually indicative of combat. In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Here, the evidence clearly indicates a current diagnosis of the claimed condition. As for verification of the in-service injury, although the veteran's and other lay statements cannot be used to establish a nexus between service and his current condition, they certainly are credible enough to establish in-service incurrence of head trauma. The service medical records confirm the veteran was treated for frequent headaches accompanied with fainting spells and parasthesias. The veteran's testimony of the physical demands placed on him carrying equipment and as a result of the many parachuting jumps he completed while working in the aircraft crew in Vietnam is consistent with the circumstances of combat. He also submitted medical opinions linking his current hypopituitarism to an in-service injury. The evidence is not dispositive, but it raises a reasonable possibility of substantiating the claim and serves to reopen the claim for service connection for hypopituitarism. The Board may now proceed and determine whether service connection is warranted for the claimed condition. Service Connection As mentioned above, in order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence, of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). In the absence of a presumption, in order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). The Board again notes that the veteran served in combat while stationed in Vietnam from December 1969 to December 1970. Again, a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. See U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); U.S.C.A. § 1154(b). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). The veteran alleges he served as a paratrooper in Vietnam and, consequently, had many physical demands. He also alleged he was in two aircraft crashes while in Vietnam. One, in April 1970, resulted in head trauma, which he believes is responsible for his current hypopituitarism. The veteran's service medical records do not confirm a helicopter crash or any other aircraft crash for that matter. The veteran's DD-214, further, does not confirm the veteran was specifically a paratrooper, but does indicate he served on the aircraft crew. His personnel records are not in the claims file, but his testimony regarding his combat duties is consistent with the time, place and circumstances of his military service. In support of his claim, he also submitted a statement from a fellow veteran, who was his commanding officer in 1974. Although she did not serve with him during his time in Vietnam, she stated she was informed of his past two aircraft crashes in Vietnam in 1969. The aircraft crashes, she claims, were further confirmed by an executive officer who was stationed with the veteran in Vietnam. She further stated she waived the requirement for him to take the physical fitness test in order to keep him on active duty because he was a real asset to her unit. The Board acknowledges that the veteran and his former commanding officer are competent to give evidence about what they experienced; for example, the veteran is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). They are not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The veteran's service medical records are silent as to a diagnosis of hypopituitarism. They do indicate, however, extensive complaints and treatment for severe headaches with parasthesias and occasional periods of unconsciousness or fainting spells. The veteran went through extensive clinical tests, but no definitive diagnosis, other than sinusitis, was ever rendered. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. After service, the VA outpatient treatment records indicate a diagnosis of hypopituitarism, secondary to remote head trauma, as early as March 1990, but the records also reference a diagnosis from the veteran's private doctor, Dr. Aron, as early as the 1980s. Dr. Aron, in November 2003 and October 2006 statements, opines that the veteran's hypopituitarism is a causal manifestation of the in-service head trauma the veteran suffered in the helicopter crash during his tour in Vietnam. Specifically, Dr. Aron opines in an October 2006 statement as follows: I am writing this letter as an endocrinologist with special expertise in disorders of the pituitary gland. ... [The veteran's] case is a classic case of post-traumatic hypopituitarism, a disorder that although first described almost 100 years ago has become increasingly recognized as an important cause of hypopituitarism. ...Twenty years before presentation, at the age of 28, the patient suffered a closed-head injury during a helicopter mishap in Vietnam. On arrival at a MASH unit, the patient was unconscious. Plain roentgenograms disclosed no skull fracture, and no surgical procedures were performed. The patient recovered spontaneously 48 hours later. No post-traumatic amnesia, focal and/or generalized neurologic deficits, or seizures were noted. The patient remained in the military and did well except for occasional headaches. ... The bottom line: undiagnosed pituitary hormone dysfunction is common following traumatic brain injury. In my opinion, [the veteran] represents a classic case of this disorder. Dr. Aron's statements also detailed specific clinical tests and research done in conjunction with the opinion, but it is not clear whether Dr. Aron had the veteran's military records to review prior to rendering his opinion or relied on the veteran's self-reported history. It is likely, however, that Dr. Aron was relying on the veteran's self-reported history since the helicopter crash is not verified in the veteran's service medical records. The veteran has never been afforded VA examinations to specifically opine whether the veteran's current diagnoses are related to his in-service military occupation, complaints or alleged injuries. The medical evidence reveals continuous in-service years of complaints of severe headaches, parasthesias and fainting spells. The veteran's pituitary gland condition was diagnosed relatively soon after separation in the early 1980s. There is also no evidence that the veteran ever had a post-service injury. The veteran's testimony regarding the physical demands of his military occupation while working as an aircraft crewmember is credible and consistent with the time and place of the veteran's service. The veteran frequently complained of joint pain and stiffness, headaches and fainting spells throughout his military. On the other hand, although the VA outpatient treatment records link the veteran's current diagnosis to "head trauma secondary to a helicopter crash", no specific head injury is confirmed in the veteran's service medical records. However, the veteran reported his past and current symptoms to the medical providers, which he is competent to do. See Buchanan v. Nicholson, No. 05-7174 (Fed. Cir. June 14, 2006). The medical evidence and relation to in-service injuries appear to be based on the veteran's unconfirmed reported history of events, but also on his symptoms, confirmed medical history and current physical examination. The Board also finds the continuity of symptomatology and Dr. Aron's detailed nexus opinion extremely probative. Although the veteran's reported history of specific in-service injury is not confirmed in the service medical records, medical providers are competent to render a diagnosis based on the veteran's self-reported history of symptoms. At the very least, the continuity of symptomatology, the veteran's military occupation, Dr. Aron's unchallenged medical opinion, the unchallenged medical opinions found in the VA outpatient treatment records based on unconfirmed factual premises and self-reported history of symptomatology all render the claim in equipoise. As such, the benefit of the doubt must be resolved in favor of the claimant. 38 C.F.R. § 3.102. Therefore, based on the foregoing, the Board finds entitlement to service connection for hypopituitarism is warranted. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Since the claim here is being reopened and granted, any deficiencies in notice or assistance were not prejudicial to the veteran. ORDER As new and material evidence has been received to reopen the claim for service connection for hypopituitarism, the claim is reopened. Entitlement to service connection for hypopituitarism is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs