Citation Nr: 9906831 Decision Date: 03/15/99 Archive Date: 03/24/99 DOCKET NO. 97-23 560 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES Whether new and material evidence has been submitted to reopen a claim for service connection for prostatitis. Whether a May 1983 RO decision contains clear and unmistakable error (CUE) for denying service connection for prostatitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from January 1942 to December 1945. The May 1983 RO decision notified the veteran that service connection for prostatitis was denied. He did not appeal. Since the May 1983 RO decision the veteran has submitted an application to reopen the claim for service connection for prostatitis and alleges that there was CUE in this decision for denying service connection for prostatitis. This appeal comes to the Board of Veterans' Appeals (Board) from RO decisions in 1996 and 1997 that denied the requested benefits. FINDINGS OF FACT 1. By an unappealed RO decision of May 1983, service connection for prostatitis was denied. 2. Evidence received subsequent to the May 1983 RO decision is of such significance that it must be considered in order to fairly decide the merits of the claim. 3. Acute prostatitis was treated in service; prostatitis was not found at the time of the veteran's medical examination for separation from service or in the post-service medical evidence in the record at the time of the May 1983 RO decision. 4. The medical evidence of record at the time of the May 1983 RO decision did not show chronic prostatitis and the decision was reasonable in its denial of service connection for this disorder. CONCLUSIONS OF LAW 1. The unappealed May 1983 RO decision, denying service connection for prostatitis, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1998). 2. New and material evidence has been received to reopen the claim for service connection for prostatitis. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1998). 3. The May 1983 RO decision, denying service connection for prostatitis, was not based on CUE. 38 C.F.R. § 3.105(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether New and Material Evidence has been Submitted to Reopen a Claim for Service Connection for Prostatitis In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998). An appeal consists of a timely filed notice of disagreement and, after issuance of a statement of the case, a timely filed substantive appeal. 38 C.F.R. § 20.200. The May 1983 RO decision notified the veteran that it had determined that service connection was not warranted for prostatitis, and the veteran did not appeal. Since the veteran did not appeal this decision, it became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The question now presented is whether new and material evidence has been submitted since the May 1983 RO rating to permit reopening of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant; to be material, it must bear directly and substantially upon the specific matter under consideration (here, whether the veteran had chronic prostatitis in service). For evidence to be new and material it must be of such significance that, alone or with the other evidence of record, it must be considered in order to fairly decide the merits of the claim. Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The evidence of record at the time of the May 1983 RO decision consisted of statements from the veteran that he had prostatitis in service, service medical records showing treatment for acute prostatitis and a report of medical examination for separation from service that was negative for prostatitis, and post-service medical records that did not show the presence of prostatitis. Since the May 1983 RO decision, various evidence has been submitted, including a private medical report dated in February 1985 noting that the veteran was under treatment for chronic prostatitis. This evidence now shows that the veteran has the claimed disorder and makes it more likely that his claim for service connection for this condition is plausible. This evidence by itself contributes a more complete picture to the veteran's claim and is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for prostatitis. Hodge, 155 F. 3d 1356; Elkins v. West, No. 97-1534 (U.S. Vet. App. Feb. 17, 1999) (en banc). Hence, the Board finds that new and material evidence has been submitted to reopen the claim for service connection for prostatitis. II. Whether the May 1983 RO Decision Contains CUE for Denying Service Connection for Prostatitis The veteran's claim that the May 1983 RO decision contains CUE for denying service connection for prostatitis is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to this claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). Previous determinations of the RO are final and binding, including decisions as to the degree of disability, and will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error; it is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at the time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and a determination of CUE must be based on the record and law that existed at the time of the prior adjudication, Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Russell v. Principi, 3 Vet. App. 310, 313-314 (1992). In this case, the veteran asserts that there was CUE in the May 1983 RO decision, denying service connection for prostatitis, because he had chronic prostatitis in service and the RO concluded in the decision that his prostatitis in service was an acute and transitory condition. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service medical records reveal that the veteran was hospitalized in January 1943 for treatment of acute prostatitis, but prostatitis was not found at the time of his medical examination for separation from service in December 1945. The post-service medical evidence in the record at the time of the May 1983 RO decision, including a report of the veteran's VA medical examination in January 1966, did not show the presence of prostatitis. A review of the evidence of record in May 1983 is not sufficient to show the presence of chronic prostatitis, and the Board finds that the May 1983 RO decision is reasonably supported by the evidence then of record. Hence, the May 1983 RO decision does not contain CUE. ORDER New and material evidence having been received, the application to reopen the claim for service connection for prostatitis is granted. The claim that the May 1983 RO decision contained CUE for failing to grant service connection for prostatitis is denied. REMAND Since the Board has held that the claim for service connection for prostatitis is reopened, the entire evidentiary record must be considered. Consequently, the case is remanded to the RO for consideration of the issue of entitlement to service connection for prostatitis prior to appellate consideration of this issue in order to ensure due process to the veteran, pursuant to the decision of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court")" in Bernard v. Brown, 4 Vet. App. 384 (1993). While the Board has determined that there is new and material evidence to reopen the claim for service connection for prostatitis, it does not necessarily flow from this determination that there is a well-grounded-claim. Winters v. West, No. 97-2180 (U.S. Vet. App. Feb. 17, 1999) (en banc). In this regard, the veteran should be given the opportunity to submit additional evidence with regard to his claim for service connection for prostatitis. Where there is a reasonable possibility that a current condition of the veteran is related to a condition experienced in service, VA should seek a medical opinion as to whether the veteran's current condition is in any way related to the condition experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). In view of the above, the case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to prepare a detailed list of all sources (VA and non-VA) evaluations and treatment for prostatitis since separation from service. Names and addresses of the medical providers, and dates of evaluations and treatment, should be listed. After obtaining any needed release forms from the veteran, the RO should directly contact the medical providers and obtain copies of the records not already in the file. 2. After the above development, the RO should review the claim. The review of the claim should initially consider whether the veteran has submitted a well- grounded claim for service connection for prostatitis prior to adjudication of the claim on the merits. 3. If the RO determines that the claim is well grounded, it should arrange for the veteran to undergo a VA compensation examination to determine the nature and extent of any prostatitis, and to obtain an opinion as to the etiology of any such disorder. The examiner should give a fully reasoned opinion as to whether it is at least as likely as not that any prostatitis found is related to the veteran's prostatitis in service. The examiner should support the opinion by discussing medical principles as applied to the medical evidence in the veteran's case. In order to assist the physician in providing the requested information, the claims folder must be made available to him or her and reviewed prior to the examination. 4. If the decision remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to him and his representative. The veteran and his representative should be afforded an opportunity to respond to the supplemental statement of the case before the file is returned to the Board. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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 Supp. 1998) (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. 8.44- 8.45 and 38.02-38.03. J. E. DAY Member, Board of Veterans' Appeals - 6 - - 1 -