Citation Nr: 0811519 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-36 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for ankylosing spondylitis. 2. Entitlement to service connection for a lung disability, to include as secondary to ankylosing spondylitis or exposure to asbestos. 3. Entitlement to service connection for a right shoulder disability, to include as secondary to ankylosing spondylitis. 4. Entitlement to service connection for varicose veins. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, to include as secondary to ankylosing spondylitis. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left eye disability, to include as secondary to ankylosing spondylitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from February 1974 to September 1977. By rating decision dated in September 2002, the Regional Office (RO) denied the veteran's claims for service connection for depression and for a left eye disability. He was notified of this determination and of his right to appeal by a letter dated the following month, but a timely appeal was not received. He has subsequently sought to reopen his claims for service connection for these disabilities. In an October 2004 rating action, the RO concluded that new and material evidence had not been submitted to reopen the claims for service connection for a psychiatric disability or for a left eye disability. In addition, the RO denied service connection for ankylosing spondylitis, a lung disability, a right shoulder disability and varicose veins. In 2007, the Board referred the veteran's claims folder to an independent medical expert for a medical opinion. That opinion was received in November 2007 and the veteran and his representative were provided copies of the opinion and given the opportunity to submit additional evidence. The Board notes that the veteran submitted a claim for service connection for a left shoulder disability in March 2007. Since this matter was not developed or certified for appeal, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. After resolving all doubt in the veteran's favor, the veteran's ankylosing spondylitis had its onset in service. 2. The veteran has been granted service connection for nephrolithiasis and, by this decision, ankylosing spondylitis. 3. The veteran's restrictive lung disability is directly related to his ankylosing spondylitis. 4. The veteran's right shoulder disability is directly related to his ankylosing spondylitis. 5. The service medical records are negative for complaints or findings of varicose veins. 6. Varicose veins were not shown in service or for many years thereafter, and are not related to any incident in service. 7. A September 2002 rating decision denying service connection for a psychiatric disability and for a left eye disability was not appealed. 8. Evidence received subsequent to that decision relates to an unestablished fact necessary to substantiate the claims and raise a reasonable possibility of substantiating the claims. 9. The competent medical evidence establishes that the veteran's service-connected ankylosing spondylitis contributed to the development of a psychiatric disability. 10. The competent medical evidence establishes that the veteran's service-connected ankylosing spondylitis contributed to the development of a left eye disability. CONCLUSIONS OF LAW 1. Ankylosing spondylitis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. A lung disability is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§3.102, 3.310(a) (2007). 3. A right shoulder disability is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a) (2007). 4. Varicose veins were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§3.102, 3.303 (2007). 5. New and material evidence having been received, the claim for entitlement to service connection for a psychiatric disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 6. A psychiatric disability is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2007). 7. New and material evidence having been received, the claim for entitlement to service connection for a left eye disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 8. A left eye disability is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, May 2004 and November 2006 letters, the RO advised the veteran what information and evidence is needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence that pertains to the claim. The veteran was advised of the evidence needed to establish a disability rating and effective date in the supplemental statement of the case issued in August 2006 and in the November 2006 letter. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include hearing testimony, statements from friends and relatives of the veteran, the service treatment records, private and VA medical records, the reports of VA examinations, and the opinion of an independent medical expert. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The veteran has been an active participant in the claims process. Thus, any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Any such error is harmless and does not prohibit consideration of this matter on the merits. See Sanders, supra; Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform to the Court's decision in Allen. Regardless, based upon the facts in this case, neither version is more favorable and the regulatory change does not impact the outcome of the appeal. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A. Ankylosing spondylitis The veteran was seen in a VA outpatient clinic in November 1994 for complaints of hematuria and back pain. A VA rheumatology clinic report in December 1994 noted that he had had a reasonable response to medication, with significant, but still incomplete relief of his symptoms. It was noted that the HLA-B27 test was positive. The examiner indicated that these observations and X-ray findings confirmed the diagnosis of ankylosing spondylitis. The issue in this case is whether the veteran's ankylosing spondylitis is related to service. A number of opinions have been associated with the claims folder. In this regard, it is significant to point out that there is no medical opinion of record that definitively concludes that ankylosing spondylitis did not have its onset in service. The Board acknowledges that following a VA examination in July 2006, the examiner stated that he could not resolve the question regarding the etiology of ankylosing spondylitis without resorting to speculation. In contrast, the Board notes that there are several medical opinions, including some predicated on a review of the medical evidence, that find that ankylosing spondylitis as likely as not had its inception in service. Initially, in a statement received in January 2005, A.S. Townes, M.D., related that he had examined copies of medical records provided by the veteran. He confirmed that the veteran had ankylosing spondylitis, and noted that the most likely time of its onset is in the second and third decades of life. He indicated that there was usually a delay of several years between onset and diagnosis due to the vague and non-specific early symptoms. He referred to several entries in the veteran's service medical records that provided support for his opinion. Dr. Townes noted that the veteran had been seen in service for complaints involving the left ankle in March 1974, and noted that ankylosing spondylitis frequently causes inflammation in the tendon in the ankle. Thus, he stated that this episode might be related to the disease. He also noted that the veteran had been seen in May 1975 with groin pain that radiated to the scrotum and hips. He said that this was suggestive of pain due to sacroilitis that was commonly one of the early manifestations of spondylitis, and that subsequent X-rays at the VA had confirmed the presence of advanced changes of spondylitis. Finally, Dr. Townes observed that the veteran had been evaluated for left shoulder pain in November 1976 and involvement of the shoulder girdle and thoracic spine is common in this disease. Although Dr. Townes stated that it could not be concluded with certainty that the onset of ankylosing spondylitis occurred during service, the usual age of onset, the non- specific symptoms, the delay in ability to diagnose the disease in its early stages and the suggestive medical encounters in service are consistent with the fact that the veteran had ankylosing spondylitis as early as 1974. Dr. Townes reiterated his opinion in a March 2006 statement. At that time, he noted that he had treated the veteran at the VA in 1994. The veteran was afforded a VA examination in October 2005. The examiner noted that he reviewed the claims folder. Following the examination, the impression was ankylosing spondylitis. The physician commented that the onset of ankylosing spondylitis was not entirely clear, but that it was very possible, given the fact that these processes occur at an early age, that the veteran had it well before the 1990's. He opined that it was a 50/50 probability that ankylosing spondylitis occurred in service. Finally, the Board notes that it referred the veteran's claims folder to an independent medical expert in October 2007 for an opinion regarding he onset of ankylosing spondylitis. The physician noted that he reviewed the claims folder. He referred to the veteran's treatment in service for complaints relating to the left foot and shoulder. He concluded that "it is as likely as not that [the veteran's ankylosing spondylitis] had its onset during active duty." He noted that various examinations had failed to conclude that there was a certainty that the onset of the veteran's ankylosing spondylitis was during service, and that he concurred with this assessment. The fact remains, however, that it is not necessary to establish service connection to a certainty. Under the benefit of the doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this case, the Board concludes that the evidence concerning the onset of the veteran's ankylosing spondylitis is at least in equipoise, and that, therefore, service connection is warranted. B. A lung disability disability The record discloses that the veteran experienced respiratory complaints in 2003. He was hospitalized by the VA in December 2003 for increasingly severe shortness of breath. Following a pulmonary function study, it was indicated that the veteran had a moderate restrictive lung disease related to ankylosing spondylitis and pectus excavatum. In an addendum prepared on the day following hospital discharge, it was noted that the veteran clearly had ankylosing spondylitis with apical interstitial lung disease related to ankylosing spondylitis, but that his obstructive airways disease was of unclear etiology. A similar conclusion was reached following a VA outpatient treatment clinic visit in March 2004. At that time, it was noted that possible asbestos exposure was also a factor in the veteran's restrictive pattern. Following a VA examination in October 2005, the examiner concluded, based on a review of the claims folder, that the veteran's chronic obstructive pulmonary disease was not due to ankylosing spondylitis. He added, however, that the restrictive lung disease, which caused dyspnea and exacerbated the veteran's chronic obstructive pulmonary disease, was most likely a result of the ankylosing spondylitis. There is no evidence to the contrary. The Board concludes, accordingly, that the preponderance of the evidence supports the claim for service connection for restrictive lung disease. C. A right shoulder disability The veteran was seen in a VA outpatient treatment clinic in February 2004 with complaints of right shoulder pain which had been present for about six weeks. It was thought to be due to strain from throwing a football. When he was seen the following month, it was indicated that it was suspected that his symptoms were due to rotator cuff tendonitis, and less likely due to ankylosing spondylitis, as it was asymmetric to left shoulder pain. The veteran was seen in the rheumatology clinic later in March 2004 and the assessment was probable adhesive capsulitis of the right shoulder, associated with ankylosing spondylitis. Following the October 2005 VA examination, which included a review of the claims folder, the examiner opined that since the veteran was a construction worker, and that magnetic resonance imaging of the right shoulder was not specific for ankylosing spondylitis, there was only a 50/50 probability that the degenerative joint disease of the right shoulder was caused by ankylosing spondylitis. As noted above, this is sufficient for the Board to conclude that the evidence is in equipoise regarding the etiology of a right shoulder disability. The Board concludes, therefore, that service connection is warranted for a right shoulder disability. D. Varicose veins The evidence supporting the veteran's claim includes his statements and some medical findings. The veteran was treated in a VA outpatient treatment clinic in April 2002 and reported that he had had varicose veins in his right leg for quite some time. An examination revealed that the right foot was somewhat edematous and that the veteran had what appeared to be a venous insufficiency. He had varicosities on the right leg up to the mid tibia. Subsequent treatment records note pronounced varicose veins in the right leg. The evidence against the veteran's claim includes the service treatment records and the medical findings of record. Service treatment records reveal no complaints or findings of varicose veins. A VA general medical examination in October 1978 specifically noted that the veteran did not have any varicosities. The first indication of varicose veins is in 2002, many years after his discharge from service. There is no medical opinion in the record linking the disorder to service. In the absence of the disorder in service and for many years thereafter, or competent evidence linking the disorder to an incident in service, service connection must be denied. In reaching this decision the Board notes that a VA examination has not been conducted with respect to this condition. However, in the absence of evidence of the disorder in service and on the VA examination in 1978, a VA examination is not necessary. 38 C.F.R. § 3.159(c)(4); see also Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334, 1356 (Fed. Cir. 2003) ("a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease.") II. New and material evidence Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by the VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re- adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). In the present appeal, the last final denial of the claim for service connection for psychiatric and left eye disabilities is the RO's September 2002 determination. Therefore, the Board must review, in light of the applicable law, regulations, and the Court cases regarding finality, the additional evidence submitted since that decision. The RO originally denied the veteran's claim for service connection for a psychiatric disability and for a left eye disability in September 2002 on the basis that there was no clinical evidence that they were related to service or the veteran's service-connected nephrolithiasis. The additional evidence includes private and VA medical records, including opinions that a psychiatric disability and uveitis of the left eye are related to ankylosing spondylitis. Thus, the evidence relates to a previously unestablished fact, that is, that the left eye and psychiatric disabilities are proximately due to a service- connected disability. Accordingly, the additional evidence furnishes a reasonable possibility of substantiating the veteran's claims for service connection for psychiatric and left eye disabilities. Accordingly, the claims are reopened. On VA psychiatric examination in August 2002, the veteran related that while he did not recall exactly when he started to have a problem with depression, he said that it was about seven or eight years ago when he was told that he had genetic markers for ankylosing spondylitis. Following the examination, the pertinent diagnosis was depressive disorder, not otherwise specified, (secondary to medical condition). The veteran was afforded a VA psychiatric examination in October 2005. The examiner noted that she reviewed the claims folder and the veteran's electronic healthcare file. The diagnosis was depressive disorder, not otherwise specified. The examiner indicated that the veteran had suffered from his depressive symptoms since he first started experiencing complications associated with ankylosing spondylitis, and that as his medical problems had progressively worsened, the veteran's social and occupational functioning had decreased significantly, and the severity of his depression had increased. In the absence of any clinical evidence to the contrary, the Board finds that the preponderance of the evidence supports the claim for service connection for a psychiatric disability as secondary to the veteran's service-connected ankylosing spondylitis. Finally, with respect to the claim for service connection for a left eye disability, when he was treated in a VA outpatient clinic in August 2002, the veteran stated his vision had become milky and that the eye clinic had told him that it was the disease process of ankylosing spondylitis in his eye. On VA examination of the eyes in October 2005, the veteran reported a history of having uveitis in the left eye for the previous few years. Following an examination, the assessment was recurrent uveitis of the left eye, most likely caused by ankylosing spondylitis. The examiner noted that it was very common for young males with ankylosing spondylitis to have uveitis. The examiner also noted that that the veteran had nuclear sclerotic cataracts and commented that while cataracts are usually caused by age, the reason that the veteran's cataracts were worse in the left eye than the right eye was at least as likely as not due to his ankylosing spondylitis. Since there is no evidence to the contrary, the Board concludes that service connection is warranted for a left eye disability on a secondary basis. (CONTINUED ON NEXT PAGE) ORDER Service connection for ankylosing spondylitis is granted, subject to the regulations applicable to the payment of monetary benefits. Service connection for restrictive lung disease is granted, subject to the regulations applicable to the payment of monetary benefits. Service connection for a right shoulder disability is granted, subject to the regulations applicable to the payment of monetary benefits. Service connection for varicose veins is denied. New and material evidence having been received, the claim for service connection for a left eye disability is reopened. Service connection for a left eye disability is granted, subject to the regulations applicable to the payment of monetary benefits. New and material evidence having been received, the claim for service connection for a psychiatric disability is reopened. Service connection for a psychiatric disability is granted, subject to the regulations applicable to the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs