Citation Nr: 0810181 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 07-16 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis, and if so, entitlement to service connection for the same. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant; his friend ATTORNEY FOR THE BOARD B. Buck, Associate Counsel INTRODUCTION The veteran served on active duty from November 1953 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which declined to reopen the veteran's previously denied claim. In the April 2007 statement of the case, the RO reopened the claim and denied it on the merits. The veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in St. Petersburg, Florida in March 2008 to present testimony on the issue on appeal. He submitted additional evidence at that time, with a waiver of RO consideration of that evidence. The hearing transcript has been associated with the claims file. Later that same month, the Board granted the veteran's motion to advance the case on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). The merits of the claim of entitlement to service connection for arthritis are addressed in the REMAND portion of the decision below and the issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for arthritis was denied by rating decision in May 1971. The veteran did not appeal that decision. 2. Evidence submitted since May 1971 relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 1971 rating decision is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.160, 19.118, 19.153 (1971). 2. The evidence added to the record since May 1971 is new and material; the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the agency of original jurisdiction has a duty to notify and assist the veteran under 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159 (2007). As will be discussed below, the Board finds that new and material evidence has been submitted sufficient to reopen the claim. Therefore, a full discussion of whether VA met these duties is not needed, as no prejudice could flow to the veteran. The veteran seeks service connection for arthritis affecting many joints of his body. By rating decision in May 1971, service connection was denied, as the evidence at that time did not show that the veteran had arthritis. The veteran did not appeal that decision. Applicable law provides that the May 1971 decision that was unappealed is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.160, 19.118, 19.153 (1971). Once a decision becomes final, new and material evidence is required to reopen the claim which was denied. 38 U.S.C.A. § 5108 (West 2002). The RO reopened the claim by its discussion in the April 2007 statement of the case. Nevertheless, regardless 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); 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 appellant's previously and finally denied claims). "New" evidence is existing evidence not previously submitted to agency decisionmakers. "Material" evidence is 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 neither be 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. See 38 C.F.R. § 3.156(a) (2007). Since the May 1971 decision, the veteran has submitted evidence confirming a diagnosis of arthritis and two private medical opinions relating that diagnosis to his time in service. The law provides that evidence proffered by the veteran to reopen his claim is presumed credible for the limited purpose of ascertaining its materiality. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). Thus, presuming its credibility, this evidence relates directly to the reason the veteran's claim was denied previously, while raising a possibility of substantiating the clam. As such, the veteran has submitted new and material evidence sufficient to reopen his claim. On that limited issue, the appeal is granted. The merits of the claim are discussed below. ORDER New and material evidence having been submitted, the application to reopen the previously denied claim of entitlement to service connection for arthritis is granted. REMAND Additional development is necessary prior to appellate review of the merits of this claim. In his hearing before the undersigned, the veteran testified as to receiving in-patient treatment at Lackland Air Force Base Hospital during his basic training. He further indicated that he believed his current problems stem from that incident. Service medical records do not confirm such treatment at the outset of his service. However, it does not appear that clinical records from the hospital itself have been requested. An effort must be made to obtain any outstanding records from the veteran's period of service. In personal statements throughout his appeal, the veteran has referred to his disorder as "rheumatism," though a clinical diagnosis of rheumatoid arthritis has not been noted. In fact, current treatment records are unclear as to the nature and extent of the veteran's claimed arthritis. Private treatment records note, on occasion, a diagnosis of degenerative joint disease, without reference to the particular joints involved. See, e.g., progress note dated December 2006. Records also mention a history of gout. See progress note dated in July 2000. The veteran's current diagnosis is unclear. The veteran has submitted opinions from his treating primary care physician that attempt to link his current disability to service. Particularly, in a December 2006 opinion, the physician indicated that the veteran had severe "OJD" in his shoulders and knees. The opinion appeared to link the veteran's current "generalized" arthritis to his service, though the connection is not clear. The same physician submitted a follow-up opinion in March 2007, which stated that the veteran was diagnosed with arthritis of the neck in the military and that arthritis had moved to other parts of his body. A diagnosis of arthritis in service, however, is not confirmed by the current state of the record. Despite the imprecise nature of the evidence submitted, the veteran has submitted sufficient evidence to warrant further development in the form of an examination and opinion. See 38 C.F.R. § 3.159(c)(4) (2007); see also, McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Such must be undertaken on remand. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Request from the appropriate source CLINICAL RECORDS from the Lackland Air Force Base Hospital dating from November 1953 to February 1954. 2. Schedule the veteran for a VA examination to determine the nature and etiology of any arthritis disability diagnosed. The claims file must be reviewed in conjunction with the exam. All diagnostic testing must be conducted and the results reported in detail. Based on the exam results and the review of the claims file, the examiner is asked to clarify any and all diagnoses referable to the veteran's right shoulder, cervical and lumbar spine, bilateral hips, and bilateral knees. This must include whether the veteran has rheumatoid arthritis, gout, or other arthritic condition. The examiner also is asked to render an opinion as to whether it is at least as likely as not (probability of fifty percent or more) that the veteran's current diagnosis is related to his documented in-service complaints. Attention is invited to the veteran's tabbed service medical records, as well as the tabbed post-service documents and private medical opinions. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Joaquin Aguayo-Pereles Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs