Citation Nr: 0811210 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-070 332 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been obtained to reopen a claim of entitlement to service connection for allergic reaction to bee and wasp stings, and if so, whether service connection is warranted for the claimed disability. 2. Entitlement to an increased disability rating for residuals of a right clavicle fracture, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from January 1979 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2004 and January 2006 rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. The veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in November 2007; a transcript of that hearing is associated with the claims folder. The issue of entitlement to service connection for allergic reaction to bee and wasp stings is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A July 1992 rating decision denied the veteran's request to reopen a previously disallowed claim of entitlement to service connection for allergic reaction to bee and wasp stings. The veteran was notified of his appellate rights, but did not file a notice of disagreement. 2. Evidence received since the July 1992 rating decision relates to an unestablished fact necessary to substantiate the veteran's previously disallowed claim. 3. In testimony received at a November 2007 Board hearing, prior to the promulgation of a decision in the appeal, the veteran withdrew his appeal of the issue of entitlement to an increased disability rating for residuals of a right clavicle fracture, currently evaluated as 20 percent disabling. CONCLUSIONS OF LAW 1. The July 1992 rating decision which denied the veteran's request to reopen a previously disallowed claim of entitlement to service connection for allergic reaction to bee and wasp stings is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1003 (2007). 2. Evidence received since the July 1992 rating decision in connection with veteran's claim of entitlement to service connection for allergic reaction to bee and wasp stings is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to an increased disability rating for residuals of a right clavicle fracture, currently evaluated as 20 percent disabling. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist For purposes of evaluating the veteran's request to reopen his claim of entitlement to service connection for allergic reaction to bee and wasp stings, the Board notes that a lengthy discussion of whether there has been sufficient compliance with the Veterans Claims Assistance Act (VCAA) is unnecessary as the Board is reopening this claim. Similarly, the veteran is withdrawing his appeal as to the issue of entitlement to an increased disability rating for residuals of a right clavicle fracture; thus, no purpose would be served by undertaking a VCAA discussion. Analysis I. New and Material Evidence Generally, an unappealed RO denial is final. However, the veteran may request that VA reopen his claim upon the receipt of 'new and material' evidence. 38 U.S.C.A. § 5108 (West 2002). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. See also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). According to 38 C.F.R. § 3.156(a) (2007), 'new 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. 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The veteran was previously denied entitlement to service connection for bilateral hearing loss by a July 1981 RO decision, and more recently, a July 1992 rating decision, on the basis that allergic reaction to bee and wasp stings is considered a constitutional or developmental abnormality which existed prior to active duty and was not aggravated by the veteran's military service. The evidence of record at the time of the most recent denial consisted of the veteran's service medical records, a Columbia VA Medical Center (MC) hospital summary dated September through October 1985, and a medical certificate dated June 1992. By rating decision dated in January 2005, the RO denied reopening the veteran's claim on the basis that new and material evidence had not been submitted. The veteran received notice of the decision and timely appealed it. Evidence associated with the claims folder since the July 1992 rating decision consists of more statements from the veteran, including testimony at DRO and Board hearings, emergency department reports from St. John's Mercy Hospital dated in July 2000, August 2002, and January 2006, and treatment reports from Dr. Berdy dated December 2004 and March 2006. Pertinent to the veteran's request to reopen his previously disallowed claim is his November 2007 testimony that treatment of his bee sting during service was delayed, and that such delay, according to a physician, may have weakened his immune system. Board Hearing Transcript, pp. 5-7, 10-11. A December 2004 treatment report from Dr. Berdy notes that the veteran reports a history of allergic reaction to stinging insects since first grade. According to Dr. Berdy's report, the veteran described an incident during service in which he was stung on the finger and treatment included insertion of an ET tube (endotracheal tube) with ventilation. In making recommendations for the veteran's future treatment, Dr. Berdy writes that "due to the fact that he required intubation and mechanical ventilation, I suspect that he will need indefinite immunotherapy." The Board finds the above evidence to be both new and material. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The evidence, including the veteran's lay testimony and statements to Dr. Berdy, was not available at the time of the prior decision; therefore, it is new. Moreover, the evidence discussed above is material because it suggests that treatment the veteran asserts receiving during service may have led to a need for indefinite immunotherapy. Such evidence may demonstrate aggravation. Therefore, presuming the credibility of the veteran's lay statements, the Board holds that the newly submitted evidence is so significant that it must be considered in order to fairly decide the merits of this claim, and as such, the claim for entitlement to service connection for allergic reaction to bee and wasp stings must be reopened for full review. 38 C.F.R. § 3.156(a). II. Increased Rating Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision or on the record at a hearing. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2007). In November 2007, the veteran testified that he was withdrawing his appeal regarding the issue of entitlement to an increased disability rating for residuals of a right clavicle fracture. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review such claim and it is dismissed. ORDER The issue of entitlement to service connection for allergic reaction to bee and wasp stings is reopened, and to that extent, the claim is granted. The issue of entitlement to an increased disability rating for residuals of a right clavicle fracture is dismissed. REMAND As noted above, the veteran contends that he is entitled to service connection for aggravation of allergic reaction to bee and wasp stings on the basis that a delay in treatment of a bee sting incurred during service weakened his immune system and led to the development of post-service breathing problems, including bronchial asthma. A review of the veteran's service medical records reflects that he was evaluated for induction into the United States Marine Corps on June 1, 1978, December 29, 1978, January 2, 1979, and January 23, 1979. Notations pertaining to the first three examinations deem the veteran "unfit" for active duty. His induction examination report indicates that he was noted to have an abnormality of the vascular system, namely, hypersensitivity to bee and wasp stings. See also Recruit Physical Screening Physical Examination Note dated January 26, 1979. At entrance the veteran reported a history of a bee sting in November 1978 and a reaction to a bee sting in 1970(?) requiring hospitalization for one week. He also stated that his throat swelled up when stung. In light of the fact that allergic reaction to bee and wasp stings was noted on the veteran's entrance examination, the presumption of sound condition at service entrance does not attach in this case. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304(b). Thus, the veteran's claim is one for aggravation of a preexisting disability. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). See also VAOPGCPREC 82-90 (July 18, 1990) (service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin if the evidence as a whole establishes that the disability was incurred or aggravated during service). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2007). When the pre-service disability undergoes an increase in severity during service, the presumption of aggravation applies, and "clear and unmistakable" evidence is required to rebut such presumption. 38 C.F.R. § 3.306(b). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Specific to the veteran's claim of service connection for a disease of allergic etiology, VA regulations require the Board to make a comparative study of the severity of the veteran's allergic reaction to bee and wasp stings at enlistment and subsequently. See 38 C.F.R. § 3.380 (2007). Moreover, any increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease; a determination as to aggravation must be on the whole evidentiary showing. Id. In the present case, the Board has carefully reviewed the competent evidence of record and concludes that further development is needed before it can proceed with a determination on the merits. In this regard, the veteran was evaluated by the Allergy Clinic in March 1980 to determine fitness for duty and the report states that "severe reaction to hymenoptera venom" manifested by itching, hives, shortness of breath, chest tightening, and wheezing was "noted clearly on induction physical and held up enlistment for a short time." Following evaluation, the veteran was recommended for discharge with a diagnosis of "hypersensitivity to hymenoptera venom, severe, with respiratory compromise" (emphasis added). See Allergy Clinic Note dated March 27, 1980. This March 1980 service medical record, noting "severe" allergic reaction at entrance and separation, suggests that the veteran's allergic reaction to bee and wasp stings did not increase in severity during service. Conversely, however, a June 1980 report of a Medical Evaluation Board (MEB) indicates that the veteran's hymenoptera venom hypersensitivity was "aggravated by service." The Board is of the opinion that based on the existing evidence, it is unclear whether the veteran's allergic reaction to bee and wasp stings underwent a permanent increase in disability during service. Since the Board is not competent to make its own medical determinations, see Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), a remand is necessary to obtain a medical opinion which addresses this issue. See Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, if it is determined that the veteran's allergic reaction to bee and wasp stings underwent a permanent increase in severity during service, it will also be necessary to obtain medical evidence regarding whether there is "clear and unmistakable evidence" that such increase was due to service, and more specifically, his stinging episode during service. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA examination with an allergy specialist. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that the claims folder was reviewed in connection with the examination. After reviewing the record, including the veteran's service medical records, examining the veteran, and performing any medically indicated testing, the examiner is asked to provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the veteran's allergic reaction to bee and wasp stings underwent a permanent increase in severity during service. This opinion should be accompanied by a complete rationale, and the examiner should specifically address the findings of the March 1980 Allergy Clinic Note and June 1980 Medical Evaluation Board Report. If the examiner concludes that it is at least as likely as not (i.e., probability of 50 percent) or more likely than not (i.e., probability greater than 50 percent) that the veteran's allergic reaction to bee and wasp stings underwent a permanent increase in severity during service, the examiner should then provide an opinion as to whether this increase in severity is due to the natural progress of the disease, or in the alternative, is due to the circumstances of the veteran's military service, including his August 1979 in-service bee sting incident. A detailed rationale should be provided for all opinions. If any requested opinion cannot be provided without invoking processes related to guesses or based upon mere conjecture, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 2. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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 claim 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs