Citation Nr: 0812161 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 01-08 369A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a lower abdominal condition (claimed as a hernia). 2. Entitlement to service connection for a lower abdominal condition (hernia). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active duty service from November 1960 to November 1964. This appeal to the Board of Veterans' Appeals (Board) is from an April 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board issued a decision in October 2005 denying three claims the veteran had appealed - for service connection for the lower abdominal condition (hernia), but also for service connection for residuals of an L-3 compression fracture and for osteoporosis. He appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2007, the Court issued a Memorandum Decision affirming the Board's decision to the extent it denied the claims for service connection for residuals of an L-3 compression fracture and for osteoporosis. However, the Court vacated, i.e., set aside, the remaining portion of the Board's decision that denied service connection for the lower abdominal condition (hernia) and remanded this claim to determine whether the veteran is waiving his right to have the RO initially consider additional evidence he has submitted since the February 2003 supplemental statement of the case (SSOC) or, if he is not, to have the RO consider this additional evidence in the first instance. 38 C.F.R. §§ 20,800, 20.1304(c) (2007). The Board has since asked the veteran's representative for clarification of this, and in a March 2008 statement the representative responded that the veteran is indeed waiving his right to have the RO initially consider this additional evidence. In this decision, as also done in the prior partially vacated decision, the Board is reopening the claim for service connection for a lower abdominal condition (hernia) on the basis of new and material evidence. However, the Board will then remand this claim to the RO via the Appeals Management Center (AMC) for further development before readjudicating the claim on the underlying merits - de novo. FINDING OF FACT Additional evidence received since a January 2000 rating decision pertaining to the veteran's claim for service connection for a lower abdominal condition (hernia) is not cumulative of evidence already of record, bears directly and substantially on this claim, and is so significant that it must be considered with all the evidence of record to fairly decide the merits of this claim. CONCLUSIONS OF LAW 1. The January 2000 decision denying service connection for a lower abdominal condition (hernia) is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2007). 2. However, there is new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) revised VA's obligations to notify the veteran of the type of evidence needed to substantiate a claim, including apprising him of the evidence he is responsible for providing, the evidence VA will obtain for him, and giving him an opportunity to submit any relevant evidence in his possession. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). The VCAA also requires that VA apprise the veteran of the downstream disability rating and effective date elements of his service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). See, too, Dunlap v. Nicholson, 21 Vet. App. 112 (2007). And in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court indicated that in a case, as here, involving a petition to reopen a previously denied, unappealed claim, the VCAA requires that VA apprise the veteran of the specific reasons for the prior denial so that he has opportunity to respond by submitting evidence to overcome those shortcomings. Since, however, the Board is reopening the claim at issue on the basis of new and material evidence, the Kent holding is inconsequential. Further, since the Board is then remanding the claim for further development before readjudicating it on the underlying merits (de novo), the Board need not determine at this point whether there has been compliance with the other notice and duty to assist provisions of the VCAA until this additional development is completed and the claim reconsidered on the merits. Temporarily deferring this consideration of whether there has been compliance with the VCAA is not prejudicial to the veteran because that determination is better made once the additional development on remand is completed. Cf. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007) (where the Federal Circuit Court held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), concerning any element of a claim, is presumed prejudicial and that once an error is identified, the burden shifts to VA to show it was harmless). See, too, Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims and, therefore, found the error harmless). New and Material Evidence to Reopen the Claim In January 2000, the RO denied the veteran's claim for service connection for a lower abdominal condition (hernia). He did not appeal that decision, although appropriately notified of it and apprised of his procedural and appellate rights. Therefore, that decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d) (2007); 38 C.F.R. § 20.200, 20.302, 20.1103 (2005). The veteran submitted additional evidence in December 2000 to try and reopen his claim. Because he filed this petition to reopen before August 29, 2001, the Board must consider his petition under the former version of 38 C.F.R. § 3.156 in determining whether this additional evidence is new and material. If new and material evidence is submitted with respect to a claim that, as here, has been denied, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously of record is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2000). See also 38 C.F.R. § 3.156(a) (2007) (amended definition of "new and material evidence" effective for claims filed on or after August 29, 2001). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Since the January 2000 denial, additional evidence received consists of: a statement from the veteran's wife, private medical records from Dr. D. C., a favorable etiology opinion from Dr. P. G., VA treatment records, the report of an August 2004 VA examination, buddy statements from M. M. and W. M., and a record from the veteran's April 2002 informal Decision Review Officer conference. All of this additional evidence is new in that it has not been submitted to VA before. But it is also material since it confirms the veteran has current disability involving the condition claimed, which was not established when the RO previously considered and denied his claim in January 2000. This additional evidence also is material because it suggests a link between this current condition (hernia and surgical repair of it) and his military service. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Routen v. Brown, 10 Vet. App. 183, 186, (1997). That is to say, this additional evidence is so significant that it must be considered in order to fairly decide the merits of his claim for this condition. 38 C.F.R. § 3.156(a) (2000). ORDER As new and material evidence has been submitted, the petition to reopen the claim for service connection for a lower abdominal condition (hernia) is granted subject to the further development of this claim on remand. REMAND The veteran submitted a March 2003 opinion from Dr. P. G., a private physician. Dr. P. G. stated the veteran's chronic left-sided lower abdominal and left leg pain was "as likely as not the straight [sic] relation to the accident [he] sustained during his military duty." Dr. P. G. elaborated that the only evidence of that accident was minimal compression of the L-3 vertebral body, which was seen on a spine X-ray taken in August 2001. In August 2004, the veteran had a VA examination - primarily concerning unrelated claims no longer at issue. But the evaluating physician nonetheless indicated that he believed the exact cause of the abdominal pain that the veteran presented with in 1964 was "unknown and may never be determined." The veteran's service medical records (SMRs) show that, in October 1964, he was treated for pain in his left inguinal area, which increased when he lifted heavy objects. His buddy statements imply that had had an abdominal condition prior to when he was first treated in 1999. The VA examiner's statement and Dr. P. G.'s opinion are somewhat conflicting, and the Board sees the veteran has not undergone a specific VA abdominal or hernia examination. Therefore, a remand is necessary so he may have this claimed disability evaluated and the examining physician may address the VA examiner's and Dr. P. G.'s opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Additionally, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the downstream degree of disability and the effective date of an award. The veteran has not received this required downstream notice and must before readjudicating his claim. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes an explanation of the information or evidence needed to establish a downstream disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule the veteran for an appropriate VA examination to obtain a medical nexus opinion indicating whether it is at least as likely as not that his lower abdominal condition (hernia) is attributable to his military service. In providing this opinion, the designated examiner should also address Dr. P. G.'s March 2003 opinion and the comment by the August 2004 VA examiner. Inform the designated examiner that the term "at least as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this. The claims file, including a complete copy of this remand, must be made available to the examiner for review of the pertinent medical and other history. Advise the veteran that failure to report for his scheduled VA examination, without good cause, may have adverse consequences on his claim. 3. Then readjudicate the claim in light of the additional evidence. If it is not granted to the veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to respond to it before returning the case to the Board for further appellate consideration The veteran has the right to submit additional evidence and argument concerning the claim 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs