Citation Nr: 0816584 Decision Date: 05/20/08 Archive Date: 05/29/08 DOCKET NO. 05-03 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for multiple sclerosis (MS), to include as a result of exposure to mustard gas, and if so, whether service connection should be granted. REPRESENTATION Appellant represented by: E. Audrey Glover-Dichter, Esquire ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from February 1951 to February 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the claim to reopen the veteran's claim for service connection for MS. In February 2006, the Board denied the claim to reopen and the veteran appealed. The Court of Appeals for Veterans Claims remanded the appeal in December 2007. As discussed in the Reasons and Bases section and the Remand section below, the claim to reopen is being granted and the claim for service connection is being remanded for further development. The Board notes that there appear to be two claim streams being adjudicated for the veteran's entitlement to service connection for MS. First, the veteran's claim filed in March 2003 is currently before the Board. As a result of the December 2007 order by the Court of Appeals for Veterans Claims, the Board's February 2006 decision has been set aside and the claim currently before the Board arises from the July 2003 rating decision, which the veteran appealed by a June 2004 notice of disagreement. In addition, in March 2007, after the notice of appeal to the Court of Appeals for Veterans Claims had been filed in May 2006 and after the appearance of the veteran's attorney had been entered in the court of appeals in May 2006, and before the appeal had been finally adjudicated by the court of appeals, the veteran's attorney filed a new claim to reopen the veteran's claim for service connection for MS (as well as claims for service connection for several disabilities secondary to the veteran's MS disability and claims for nonservice-connected pension and special monthly compensation). In the December 2007 rating decision denying the March 2007 claim to reopen, the RO noted that there was no evidence that the veteran had appealed the Board's February 2006 decision and determined that that Board's February 2006 decision was final. As noted above, that decision has not become final (because the court of appeals set aside the earlier Board decision and by the actions below, the Board is remanding that appeal to the RO/AMC). In that December 2007 rating decision, the RO denied the veteran's claim to reopen the claim for entitlement to service connection for MS. In December 2007, three weeks after the court of appeals remanded the appeal in the first claim stream to the Board, the veteran's attorney filed a notice of disagreement with respect to the RO's December 2007 rating decision. That December 2007 notice of disagreement appears to be invalid with respect to the claim to reopen the claim for entitlement to service connection for MS. Hamilton v. Brown, 4 Vet. App. 528, 541 (1993) (once a claim is in appellate status by virtue of a previously-filed notice of disagreement, the claimant may not file another notice of disagreement that could confer jurisdiction as to the same claim). Accordingly, this matter of concurrent identical claims is referred to the RO for appropriate action. In March 2008, the Board received additional evidence from the veteran to support his appeal. Since the veteran's attorney waived the veteran's right to initial consideration of that evidence by the RO, the Board considered that evidence in reaching the decision to reopen the previously- denied claim. The issue of entitlement to service connection for MS is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. An unappealed September 1993 rating decision denied the veteran's claim for service connection for multiple sclerosis. 2. Some evidence received since the last, prior, final denial on any basis, in September 1993, considered in conjunction with the record as a whole, constitutes existing evidence not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence previously considered, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The unappealed RO rating decision in September 1993, which denied service connection for multiple sclerosis, is final. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1113 (2007). 2. New and material evidence has been received to reopen the claim for service connection for multiple sclerosis, to include as a result of exposure to mustard gas. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The last, prior, final denial of the service connection claim Following an adverse determination by the RO, a notice of disagreement must be filed within one year from the notification of that determination. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. §§ 3.104(a); 20.302(a). Generally, in the absence of clear and unmistakable error, RO determinations that are not timely appealed are final and may not be reconsidered. See 38 U.S.C.A. §§ 5109A(b); 38 C.F.R. § 20.1103. In March 1993, the veteran filed a claim for service connection for multiple sclerosis (MS). In September 1993, the RO denied that claim because the record did not show that MS was incurred during service and there was no evidence that the disease had been manifested to a compensable degree within seven years after discharge. The veteran was notified of the adverse decision in October 1993, but he did not file a notice of disagreement with respect to that decision. The decision therefore became final. 38 C.F.R. § 20.302(a). No additional claim for service connection for MS was filed until the claim at issue herein-that is, the claim filed in March 2003. Thus, the September 1993 rating decision is the last, prior, final denial of the veteran's claim for service connection for MS. II. New and material evidence If new and material evidence is submitted or secured with respect to a previously denied claim, VA must reopen that claim and evaluate the merits of the claim in light of all the evidence, both new and old. 38 U.S.C.A. § 5108; Spalding v. Brown, 10 Vet. App. 6, 10 (1997). 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). Since the September 1993 rating decision, the veteran submitted extensive evidence to the RO. All of that evidence need not be discussed here because in March 2008, the veteran submitted a medical opinion and several statements that, together, meet all four requirements for new and material evidence. The January 2008 report of Dr. Bash, the statements by Dr. W and Nurse W., and the lay statement of G.K. are existing evidence that was not previously submitted to the RO. As such, those statements are "new" evidence. That evidence is also material because it relates to unestablished facts necessary to substantiate the claim. Under one of the veteran's legal theories, if the veteran's MS was manifested to a compensable degree within seven years after discharge from service, a presumption arises that the MS disease was incurred during service. 38 C.F.R. §§ 3.307, 3.309. Since the veteran was discharged in February 1953, the relevant presumptive period is from February 1953 until February 1960. In the September 1993 decision, the RO determined that the veteran's MS was not manifested at all during the seven-year presumptive period. Dr. Bash reviewed the information in the claims file that included statements by Dr. W. and Nurse W. about the symptoms the veteran complained about. Dr. W. said he remembered the veteran complaining of tingling in his fingers, headaches, and ringing in the ears. Nurse W. remembered the veteran's wife telling her that the veteran had headaches even during service, and that after he came home, his hands felt as if they were asleep at times, and he had weakness, double vision and hearing problems. She observed for herself that he seemed to be off-balance at times. From those descriptions, Dr. Bash concluded that the veteran's MS was being manifested during the 1950s and thus was manifested during the presumptive period. Unfortunately, the particular statements that Dr. Bash relied upon do not relate the veteran's symptoms to a period between February 1953 and February 1960. Dr. W. stated that he first met the veteran in the 1950s when they were neighbors and good friends. He noted that they have remained good friends. But while the doctor stated that he clearly remembered the veteran complaining of certain symptoms, he did not say that those conversations took place during the presumptive period. He provided no time frame for the conversations. Likewise, with the exception of the veteran's headaches, which Nurse W. stated she was told began during service, she also did not identify when the veteran's wife told her about the veteran's symptoms. She stated that they discussed his symptoms on numerous occasions and she noted that the veteran's wife had told her that he had not had those symptoms before his military service. But she provided no time frame for the conversations with the veteran's wife or for the symptoms they were talking about. A doctor's opinion based upon a misunderstanding of the facts is not credible. Reonal v. Brown, 5 Vet. App. 458 (1993). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). But that presumption is not unlimited because if the evidence is inherently false or untrue, the Justus rule does not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994) (VA need not presume the credibility of patently incredible evidence). Here, the Board need not determine that Dr. Bash's opinion is inherently false or patently incredible. To be sure, Dr. Bash mistakenly attributed the symptoms described by Dr. W. and Nurse W. to the period between February 1953 and February 1960. But there is other evidence in the record (not discussed by Dr. Bash) that does explicitly relate some of those symptoms to that presumptive period. G.K.'s lay statement indicates that shortly after discharge, the veteran told her husband that he was experiencing severe headaches. The next symptom she remembered the veteran telling her husband was that he was experiencing tingling in his fingers. Then, in the 1950s or early 1960s, the veteran's complaints of double vision and loss of hearing were rejected by the doctors. Although G.K.'s recollections of the last two symptoms may extend a bit beyond the presumptive period, she did tie the headaches and tingling in his fingers to a time earlier than the early 1960s. And Dr. Bash discusses sensory loss as a typical early indicator of the disease. Thus, G.K.'s lay statement, together with some of the rationale contained in Dr. Bash's report, make Dr. Bash's report sufficiently credible to be presumed credible for purposes of establishing whether new and material evidence has been received. Justus v. Principi, supra. Since the statements by Dr. W. and Nurse W. do not relate to an unestablished fact necessary to substantiate the claim- that is, that the described symptoms occurred during the presumptive period-those statements are not "material" within the meaning of 38 C.F.R. § 3.156(a). But since Dr. Bash's report, as well as the lay statement by G.K., do relate to whether the veteran's MS disability was manifested during the presumptive period, they are material. Since at the time of the last, prior, final decision denying the claim there was no statement that identified relevant symptoms during the presumptive period, nor that diagnosed the onset of MS during that period, G.K.'s statement and Dr. Bash's report are not cumulative nor redundant of evidence submitted before September 1993. And, as discussed above, the credibility of Dr. Bash's opinion is to be presumed, so Dr. Bash's report, along with the G.K. statement, raises a reasonable possibility of substantiating the claim. As a result, the standard for new and material evidence has been met. The claim is reopened, and to that extent, the claim is granted. III. Kent notice In its December 2007 order, the Court of Appeals for Veterans Claims incorporated the instructions of the parties' Joint Motion for Remand into that order. One of the instructions was to provide the veteran with notice that complies with Kent v. Nicholson, 20 Vet. App. 1 (2006). In providing section 5103(a) notice in the context of an attempt to reopen a claim, VA is required to look at the bases for the denial in the previous decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that had been found insufficient in the previous denial of the claim. Kent v. Nicholson, supra. But as the claim to reopen has been granted, any flaws in the original notice have become moot. Notwithstanding the December 2007 order of the court, since the purpose for sending such notice has been fulfilled, no such notice will be sent to the veteran. ORDER New and material evidence has been received, and the claim of entitlement to service connection for multiple sclerosis, to include as a result of exposure to mustard gas, is reopened. To this extent, the appeal is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. The veteran has submitted two legal theories to support his claim for entitlement to service connection for MS. First, he argues that his exposure to mustard gas during his active military service caused his multiple sclerosis. Second, he argues that his MS was manifested within seven years after discharge from service, so it must be presumed that his MS was incurred during service. Further development is needed with respect to both legal theories. In April 1993, the RO sought official records of the veteran's mustard gas exposure and received a reply from the National Personnel Records Center (NPRC) that all records, if any, in their custody regarding that subject were lost in the fire of July 1973. The veteran was then contacted and asked to supply more detailed information about his organizational designation, including his unit and sub-unit. The veteran's May 1993 response to that inquiry identified that his basic training unit was for the Chemical Corps and that he trained first at the Edgewood Arsenal in Englewood, Maryland, and later trained at Fort McClellan, Alabama. The veteran's claim is based on his mustard gas exposure during training, so it is the records from the training at Englewood, Maryland, and at Fort McClellan, Alabama, that would help to substantiate the veteran's claim. But the claims folder does not reflect any additional development of the veteran's chemical exposure claim after he identified where he was trained. Moreover, while a request for his personnel records from the NPRC resulted in a negative response 15 years ago, given the development of computerized data bases since then, another attempt should be made to obtain the veteran's personnel records. The RO/AMC should also make arrangements to obtain military records about the veteran's training and his exposure to chemicals during that training. If after appropriate efforts to locate the records, any cannot be obtained, appropriate documentation should be made in the veteran's claims folder and he should be notified of what attempts were made, of why a continuing search would be futile, and of his responsibility to provide the information. Additional development is also needed to substantiate the legal theory that the veteran's MS was manifested during service or within seven years after discharge. Although the veteran's early statements indicated he experienced no symptoms during service, the veteran's wife stated that he had written to her during his service in Korea and complained of severe headaches. The veteran should be contacted and asked to provide copies of those letters. On remand, the RO/AMC should also attempt to obtain the veteran's complete treatment records from Dr. Sheldon Rothenberg. After that development has been completed, the RO/AMC should make arrangements for the veteran to have an examination by a medical professional who has expertise in multiple sclerosis. Although the veteran has submitted many lay statements about his symptoms, the record contains little detail from him about the timing of his symptoms. Thus, the examiner should take a complete history concerning the veteran's symptoms and document that history in the examination report. The examiner should provide an opinion whether it is at least as likely as not that the veteran's MS had its onset during service or was manifested within seven years following separation from service (that is, by February 1960). If not, the examiner should address how and why his or her opinion differs from any contrary opinions (including that of Ms.Vanderperre and Dr. Bash) and provide an opinion whether it is at least as likely as not that the veteran's MS was caused by his exposure to mustard gas, or other chemicals, during service. Finally, since the veteran has not been provided with notice as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006), such notice should be provided to him. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a notice letter that includes an invitation to provide VA with copies of the letters sent to his wife during his military service that identify the onset of headaches and any other health issues and that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Make arrangements to obtain the veteran's military personnel file as well as information about his exposure to mustard gas, or other chemicals, during training at the Edgewood Arsenal of the Aberdeen Proving Ground, Englewood, Maryland, and at Chemical Corps School at Fort McClellan, Alabama. 3. Make arrangements to obtain the veteran's complete treatment records from Dr. Sheldon Rothenberg, dated since 1953. 4. Thereafter, make arrangements for the veteran to have an examination by an examiner who has expertise in multiple sclerosis to determine the onset and etiology of the veteran's MS condition. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination report. Any indicated studies should be performed. A complete history of symptoms during service until seven years after separation from service (that is, between February 1951 and February 1960) should be obtained. The examiner should be made aware that in addition to service medical records, post- service medical records, opinion letters, and statements by the veteran and his wife, there are numerous lay statements by the veteran's friends and neighbors in the record that may be relevant in providing an opinion. The examination report must provide complete rationale for all opinions and must address the following matters: (a) Is it at least as likely as not (that is, a probability of 50 percent or greater) that the veteran's multiple sclerosis had its onset during service (February 1951 to February 1953) or was manifested within seven years following separation from service (that is, before February 1960)? In providing his or her opinion, the examiner should clearly identify what information was relied on in reaching a decision and how that information supported the opinion, as well as what information in the claims file, if any, was rejected and why it was rejected. To the extent the examiner's opinion differs from any other professional opinions on these questions (including those of Ms. Vanderperre and Dr. Bash), please indicate how and why the examiner's opinion is different. (b) Only if the answer to question (a) is that the veteran's MS did not have its onset during service and was not manifested within seven years following service, provide an opinion on the following: Is it at least as likely as not (that is, a probability of 50 percent or greater) that the veteran's multiple sclerosis was caused by his exposure to mustard gas, or any other chemicals, during active military service? In providing his or her opinion, the examiner should clearly identify what information was relied on in reaching a decision and how that information supported the opinion, as well as what information in the claims file, if any, was rejected and why it was rejected. To the extent the examiner's opinion differs from any other professional opinions on these questions (including those of Ms. Vanderperre and Dr. Bash), please indicate how and why the examiner's opinion is different. 5. Finally, readjudicate the issue on appeal. If the claim remains denied, provide the veteran and his representative with a supplemental statement of the case. Allow an appropriate period for response. The appellant 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). 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs