Citation Nr: 0832475 Decision Date: 09/22/08 Archive Date: 09/30/08 DOCKET NO. 03-22 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for tinnitus. 5. Basic eligibility for nonservice-connected disability pension benefits. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The veteran had active military service from October 22, 1979 to February 8, 1980. The remaining dates of service are unverified. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina, which determined that the veteran had not submitted new and material evidence to reopen a claim for service connection for a low back disability, and denied his claim for basic eligibility for VA nonservice-connected disability pension benefits, and a July 2003 rating decision by the RO in Buffalo, New York, which denied the veteran's claims for service connection for a left knee disability, a right knee disability, and tinnitus. In a June 2003 statement of the case, the RO determined that new and material evidence had been submitted, reopened the claim for service connection for a low back disability, and denied the claim on the merits. Irrespective of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); 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 set forth on the title page. The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in June 2006. A copy of the transcript of that hearing is of record. In a September 2006 decision, the Board remanded this case to verify the veteran's dates of service. The stipulations of the remand order were not fully complied with and, as explained in more detail below, the claims must be sent back for additional development in order to ensure compliance with the Board's previous remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The underlying issue of entitlement to service connection for a low back disability, the issues of entitlement to service connection for a left knee disability, a right knee disability, and tinnitus, and the claim for basic eligibility for VA nonservice-connected disability pension benefits, 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. In a May 1987 rating action, the RO denied entitlement to service connection for a low back disability. The veteran was provided notice of the decision and his appellate rights. He did not appeal. 2. In September 2001, the veteran filed an application to reopen his claim. 3. Additional evidence received since the May 1987 rating action is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 1987 rating action, which denied entitlement to service connection for a low back disability, is final. 38 U.S.C.A. § 7105 (West 2002). 2. The evidence received since the May 1987 rating action is new and material, and the claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the veteran's claim to reopen based on new and material evidence with respect to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100 et. seq. (West 2002 & Supp. 2007). Given the favorable outcome as noted below, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In such instances, a grant of service connection is warranted only when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). The veteran's original claim of entitlement to service connection for a low back disability was denied by the RO in a May 1987 rating action. At that time, the RO noted that a low back condition for which the veteran was treated during service was acute and transitory. According to the RO, the veteran's current low back disability was not related to the acute condition for which he was treated in service. The veteran was provided notice of the decision and his appellate rights but did not subsequently file a timely appeal. Therefore, the May 1987 rating action became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2007). Nevertheless, a claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. Because the May 1987 rating action was the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002). The definition of "new and material evidence" as set forth in 38 C.F.R. § 3.156(a) was revised, effective August 29, 2001. This new regulation provides: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). This latest definition of new and material evidence only applies to a claim to reopen a finally decided claim received by the VA on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). As the veteran submitted his current claim to reopen in September 2001, the revised version of 3.156 is applicable in this appeal. The evidence of record at the time of the May 1987 rating action consisted of the veteran's service medical records, a private medical statement from D.H.B., M.D. (initials used to protect privacy), dated in January 1987, and private medical records, dated in February 1987. The veteran's service medical records show that on January 24, 1980, he was treated for complaints of low back pain which had developed after some heavy lifting the day before. The veteran denied any prior back problems. The assessment was acute strain. On January 25, 1980, the veteran reported that he was feeling "fifty percent better." The assessment was low back pain resolving slowly. Additional medical records show that, in May 1984, the veteran underwent a quadrennial examination. At that time, he denied any recurrent back pain. The veteran's spine and other musculoskeletal system were clinically evaluated as "normal." In a private medical statement from Dr. D.H.B., dated in January 1987, Dr. B. stated that he had recently seen the veteran for complaints of low back pain, with radiation to his legs, right greater than left. According to the veteran, the pain started approximately one year earlier when he was doing heavy work in a painting contracting business that he operated. The veteran indicated that in December 1986, he was lifting television tubes when he noticed increased pain in his lower back. Following the physical examination, the impression was to rule out lumbar disc (disease) with radiculopathy. Private medical records show that in February 1987, the veteran underwent a lumbar myelogram. The myelogram was reported to be normal. A computed tomography (CT) scan of the lumbar region from L2-L3 through L5-S1 was performed following the myelogram and was also reported to be normal. The veteran's discharge diagnosis was lumbar strain. Evidence received subsequent to the May 1987 rating action consists of service medical records from the South Carolina Army National Guard and hearing testimony. In March 2005, a hearing was conducted at the RO. At that time, the veteran stated that during his period of service from October 1979 to February 1980, he injured his back while lifting some equipment. He indicated that after his injury, he developed chronic low back pain. In the June 2006 Travel Board hearing, the veteran testified that he initially injured his lower back in January 1980 when he was lifting bridge parts. He stated that he re-injured his low back in another lifting injury in June 1998 while he was at Camp Barstow. According to the veteran, he currently took medication to relieve his chronic low back pain. In March 2007, the RO received the veteran's service medical records from the South Carolina Army National Guard. The records include a DA Form 2173, Statement of Medical Examination and Duty Status, in which a physician noted that in June 1998, the veteran suffered a lifting injury while attending AT at Camp Barstow and injured his low back. Following the injury, the veteran was diagnosed with acute low back pain. The physician determined that the injury was incurred in the line of duty. In an Annual Medical Certificate, dated in October 1999, the veteran noted that he had a back injury in 1994. In a DA Form 3349, Physical Profile, dated in January 2000, it was reported that the veteran had chronic low back pain. The veteran was not allowed to participate in the Army Physical Fitness Test (APFT) for 90 days. The veteran was hospitalized from January to February 2000 for an unrelated disorder. Upon his discharge, it was reported that he had chronic low back pain. The Board has reviewed the evidence since the May 1987 rating action and has determined that the additional service medical records from the South Carolina Army National Guard are new and material. In regard to the service medical records, this evidence is new in that it was not previously of record. It also bears directly and substantially on the issue of service connection for a low back disability. The records reflect that in June 1998, the veteran suffered a second low back injury which was determined to be incurred in the line of duty. Following the injury, he experienced chronic low back pain. This evidence was not previously of record and its new elements are not cumulative or redundant of evidence previously of record. Given that this new evidence shows that the veteran suffered a low back injury that was incurred in the line of duty and subsequently developed chronic low back pain, the evidence provides an unestablished fact necessary to substantiate the claim for service connection for a low back disability and raises a reasonable possibility of substantiating the claim. Thus, in light of the above, the added evidence is new and material evidence and the claim is reopened. The Board's decision is strictly limited to the reopening of the claim and does not address the merits of the underlying service connection claim. ORDER New and material evidence has been received to reopen a claim for service connection for a low back disability; the claim is granted to this extent only. REMAND By a September 2006 decision, the Board remanded this case. In the remand decision, the Board noted that the veteran's dates of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) were not clearly of record. Specifically, the evidence of record showed that the veteran served in the Army National Guard from April 1992 to February 2001, with prior reserve component service totaling 12 years, 7 months, and 23 days. Other data on file indicated that the veteran, as a member of the New York Army National Guard, was ordered to active military service for two days on March 14 and 15, 1993. Orders not specifically referencing the veteran denoted an annual training period with the New York Army National Guard from April 23 to May 7, 1994, and, also, that the South Carolina Army National Guard called its members to active military service for an indefinite period, beginning on August 23, 1998, for relief efforts following Hurricane Bonnie. The Board reported that in connection with the instant appeal, the veteran alleged that he had sustained injuries to his low back and knees while in military service and that his tinnitus likewise originated during or as a result of military service. However, according to the Board, as the dates of active duty, ACDUTRA, and INACDUTRA were unverified, remand for clarification was required prior to entry by the Board of a final decision as to the foregoing matters and the veteran's pension eligibility. Thus, the Board remanded this case and directed the RO to contact the service department, the New York and South Carolina Army National Guard, or other source, in order to determine the exact dates of all periods of the veteran's active duty, ACDUTRA, or INACDUTRA. In March 2007, the RO contacted the New York Army National Guard and requested verification of the veteran's service dates. In the April 2007 return response, it was reported that the veteran had no records on file with the New York Army National Guard. In March 2007, the RO also contacted the South Carolina Army National Guard and requested verification of all periods of the veteran's service. In the return response, the South Carolina Army National Guard submitted a Report of Separation and Record of Service from the Departments of the Army and the Air Force National Guard Bureau, which showed that the veteran served in the Army National Guard of South Carolina from April 24, 1992 to January 16, 2001. The veteran had 12 years, 7 months, and 23 days of prior reserve component service. The South Carolina Army National Guard further submitted a summary of his points earned towards retirement in an attempt to verify his dates of service. However, with the exception of the veteran's period of time from October 22, 1979 to February 8, 1980, in which the veteran was a reserve member on active duty, the Board is unable to determine the specific dates of active duty, ACDUTRA, or INACDUTRA from this record. For example, during the period of time from August 31, 1995 to August 30, 1996, the veteran earned 356 active duty points. Nevertheless, while the military membership status identifier linked to this period of service shows that the veteran was an Army National Guard Unit Member during the aforementioned period of time, there is still no determination as to whether this period of time was active duty, ACDUTRA, or INACDUTRA. In addition, the specific days of service during this period of time have not been provided. Thus, in order to properly adjudicate the claims on appeal, it is imperative that all periods of active duty, ACDUTRA, and INACDUTRA be verified. As such, it is the Board's determination that the RO has not complied with the instructions from the September 2006 remand decision. The Board observes that it is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board and the RO with remand directives is neither optional nor discretionary. Where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. With respect to the veteran's claim for service connection for a low back disability, in light of his testimony that he initially injured his lower back during service and that he currently had a low back disability that was related such trauma, and given that the veteran's service medical records show that in January 1980 and June 1998, he in fact sustained low back injuries, a VA examination, as specified in greater detail below, should be performed. See 38 C.F.R. § 3.159. With respect to the veteran's claims for service connection for right and left knee disabilities, the Board notes that in the March 2005 hearing at the RO and the June 2006 Travel Board hearing, the veteran testified that in the early 1990's, while he was stationed in Panama, he injured his left knee when a cinderblock was accidently thrown at the knee. According to the veteran, he subsequently developed chronic pain in his left knee and underwent arthroscopic surgery in November 2001. He indicated that due to his left knee disability, he started to put more weight on his right knee which caused him to twist and injure his right knee in March 1997. The veteran's service medical records include a private medical statement from D.R.G., M.D., dated in December 1994. In the statement, Dr. G. indicated that he had recently seen the veteran in his office for left knee problems. He diagnosed the veteran with a moderate degree of chondromalacia of his patella. According to Dr. G., the veteran should avoid excessive running, squats, or climbing, and if he was required to do those activities as part of his physical training for the National Guard, it would be medically indicated for him to have an alternative program. The service medical records further include a medical treatment record, dated in March 1996, which shows that at that time, the veteran stated that he had pain in his left knee since a cinderblock struck it in 1993. Following the physical examination, he was diagnosed with patellar femoral syndrome, chondromalacia. In a DA Form 3349, Physical Profile, dated in May 1996, the veteran was diagnosed with degenerative joint disease and patellar tendonitis of the left knee. He was directed to run at his own pace and distance, use walking for PT test, and not to perform jumping exercises; the profile was permanent. In a DA Form 2173, Statement of Medical Examination and Duty Status, dated in March 1997, it was noted that the veteran twisted his right knee while getting out of a military truck at night in a field environment. It was reported that the veteran was on a week-end drill in Eastover, South Carolina, at the time of the injury. He was diagnosed with knee pain - ligament/cartilage injury. It was determined that the injury was incurred in the line of duty. In an April 1999 treatment record, it was reported that the veteran's chief complaint was a right knee injury of two months duration. The veteran stated that he had injured his right knee while supporting his left knee. In another April 1999 treatment record, it was indicated that the veteran had left knee retropatellar pain syndrome (RPPS). In an Annual Medical Certificate, dated in October 1999, the veteran noted that he had injured his knees in 1994. The records also show that the veteran was hospitalized from January to February 2000 for an unrelated disorder. Upon his discharge, he was diagnosed with chronic left knee pain. In a January 2001 medical examination, the examiner noted that the veteran had arthritis in his left knee. The veteran's lower extremities were clinically evaluated as "normal." In a February 2001 Annual Medical Certificate, the veteran reported that he had injured his left knee. VA Medical Center (VAMC) outpatient treatment records, dated from July to December 2001, show that in October 2001, the veteran was treated for chronic left knee pain. At that time, he stated that the onset of the pain was in 1986 and that it had worsened over the last two to three years. The diagnosis was left knee pain. In November 2001, the veteran underwent a left knee arthroscopy and partial medial meniscectomy. At that time, he reported that he had injured his left knee over 10 years ago. The examiner noted that a magnetic resonance imaging (MRI) taken in April 2000 of the veteran's left knee showed that he had a complex tear of the medial meniscus. X-rays of the left knee were reported to be normal. In light of the above, although the veteran's service medical records do not show actual treatment after the alleged initial left knee injury when a cinderblock was reportedly thrown at the knee, the records reflect that in March 1996, the veteran made a reference to alleged injury when he stated that he had experienced pain in his left knee since a cinderblock struck it in 1993. In addition, the remaining records include diagnoses of left knee patellar femoral syndrome, chondromalacia, degenerative joint disease, patellar tendonitis, and a complex tear of the left knee medial meniscus. Given that the veteran underwent a left knee arthroscopy and partial medial meniscectomy in November 2001, a VA examination, as specified in greater detail below, should be performed. See 38 C.F.R. § 3.159. Moreover, in regard to the veteran's right knee, the records reflect that in March 1997, the veteran twisted his right knee when he got out of a military truck. It was determined that the injury was incurred in the line of duty. He was diagnosed with knee pain - ligament/cartilage injury. The records further show that in April 1999, the veteran stated that he had injured his right knee while supporting his left knee. Thus, in light of the above, a VA examination, as specified in greater detail below, should be performed. Id. In regard to the veteran's claim for service connection for tinnitus, in the March 2005 hearing at the RO, the veteran testified that he first noticed a high pitched ringing noise in his ears after he got out of the service. However, in the June 2006 Travel Board hearing, the veteran testified that during a week-end drill in May 1985, he was standing near a grenade simulator when it "went off." The veteran stated that after that incident, he developed a chronic ringing in his ears. The veteran's service medical records are negative for any complaints or findings of tinnitus. However, they do show that in July 1985, the veteran stated that ever since a simulator was fired near him on a week-end drill (May 16, 1985), he had experienced pain and hearing loss in his left ear. The assessment was of impacted cerumen of the left ear. The veteran returned for treatment a week later and was diagnosed with left ear otitis externa and left ear otitis media. In this case, there is no medical evidence of record showing a current diagnosis of tinnitus. However, the veteran's statements regarding ringing in his ears are supportive evidence as he is competent to report what comes to him through his senses. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the physician who performs the orthopedic examination pursuant to the Board's remand order should also provide an opinion on whether the veteran has tinnitus and if so whether it is linked to service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO must ensure compliance with the provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2007). 2. The RO must contact the National Personnel Records Center (NPRC), or any other appropriate agency, to list all of the specific dates of the veteran's active duty, ACDUTRA, and INACDUTRA. Such data must then be reduced to writing and made a part of the veteran's claims file. 3. Efforts must be made to ensure that copies of all service medical records compiled during any period of active duty, ACDUTRA, or INACDUTRA served by the veteran must be obtained for inclusion in his claims folder. 4. Thereafter, the RO should determine, in writing, whether there is any medical evidence that shows that the veteran had treatment for a low back disability, a left knee disability, a right knee disability, and/or tinnitus during any verified period of active duty, ACDUTRA, or INACDUTRA. 5. The RO should then make arrangements with the appropriate VA medical facility for the veteran to be afforded a VA orthopedic examination to ascertain the nature and etiology of any low back, left knee, and/or right knee disabilities, and tinnitus. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All diagnostic studies, tests, or specialty examinations (i.e., ENT for tinnitus) that are deemed necessary should be accomplished. After reviewing the claims file and examining the veteran, the examiner must render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the veteran has a low back disability, a left knee disability, a right knee disability, and/or tinnitus, and, if so, whether any currently diagnosed low back disability, left knee disability, right knee disability, and/or tinnitus is related to a period of active duty, ACDUTRA, and/or INACDUTRA. To assist the examiner in addressing this question, the RO should provide he/she with a list of all of the veteran's periods of active duty, ACDUTRA, and INACDUTRA. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or aggravation; less likely weighs against the claim. The examiner is requested to provide a rationale for any opinion provided. If the clinician is unable to answer any question presented without resort to speculation, he or she should so indicate. 6. The RO must then review and re- adjudicate the issues on appeal. In adjudicating the reopened claim for service connection for a low back disability, in view of the receipt of new and material service department records, the RO must consider 38 C.F.R. § 3.156(c). If any such action does not resolve each claim to the veteran's satisfaction, the RO must provide the veteran and his representative a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review. The veteran 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). These claims 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. 2008). ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs