Citation Nr: 0825876 Decision Date: 08/01/08 Archive Date: 08/13/08 DOCKET NO. 06-33 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for residuals of a left knee injury has been received. 2. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for residuals of exposure to tincture of merthiolate has been received. 3. Entitlement to service connection for a lumbar spine disorder, to include as secondary to left lower extremity injury. 4. Entitlement to service connection for hip dysplasia, to include as secondary to left lower extremity injury. 5. Entitlement to service connection for a hypertension, to include as secondary to left lower extremity injury. 6. Entitlement to service connection for a brain tumor, to include as secondary to a head injury. 7. Entitlement to service connection for headaches, to include as secondary to a head injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Physician ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service from February 1966 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appellant's claims of entitlement to service connection for residuals of a left knee injury and a rash as a residual of sensitivity to tincture of merthiolate were originally denied in a May 1968 rating decision. The appellant was notified of that denial the same month and did not appeal. The May 1968 rating decision, therefore, represents the last final action on the merits of the service connection claims for disorders of the left knee and the immune system. Glynn v. Brown, 6 Vet. App. 523 (1994). The May 1968 rating decision also represents the last final decision on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In September 2007, a hearing was held at the Board in Washington, DC before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. At that hearing, the appellant submitted additional evidence concerning his various claims; this evidence included a medical evaluation generated by a private physician. In November 207, the appellant submitted a notebook containing copies of hundreds of documents, as well as an October 2007 addendum to the private medical evaluation of September 2007. The appellant also submitted written waivers of review of that evidence by the agency of original jurisdiction and therefore referral to the RO of evidence received directly by the Board is not required. 38 C.F.R. § 20.1304. However, as the case is being remanded, the RO will have the opportunity to review the evidence prior to the issuance of any Board decision. The Board notes that, in an August 2006 written statement, the appellant raised the issue of entitlement to service connection for a left foot disorder. The RO has apparently not yet issued a rating decision on that claim. The matter is REFERRED to the RO for appropriate action. The Board also notes that the appellant, in the course of the September 2007 Board hearing, raised the issue of clear and unmistakable error (CUE) in the May 1968 rating decision. That matter is also REFERRED to the RO for appropriate action. The appellant's service connection issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The appellant is currently not service-connected for any condition. Consideration of the appellant's claims for secondary service connection for the lumbar spine, the hip dysplasia and the hypertension is deferred pending completion of the development sought in the remand that follows the decision below. The Board finds that these secondary service connection claims are inextricably intertwined with the appellant's claim for service connection for a left knee disorder. Because this left knee service connection issue is being remanded, adjudication of the secondary service connection claims must be deferred pending the outcome of the left knee issue on remand. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). FINDINGS OF FACT 1. The unappealed May 1968 RO rating decision denied the appellant's claims of entitlement to service connection for the residuals of a left knee injury and for a skin rash, claimed as residual to exposure to tincture of merthiolate. 2. In November 2004, the RO received relevant official service department medical treatment records that had existed and had not been associated with the claims file when VA first considered the claim in May 1968. CONCLUSIONS OF LAW 1. The unappealed May 1968 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. The evidence received subsequent to the May 1968 rating decision is new and material, and consequently does serve to reopen the appellant's claims of entitlement to service connection for the residuals of a left knee injury and for residuals of exposure to tincture of merthiolate. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. VA must notify the appellant of evidence and information necessary to substantiate his claims and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The RO did advise the appellant of such information relating to effective dates and disability ratings in the September 2006 Statement of the Case (SOC). As for the appellant's attempt to reopen his left knee and immune sensitivity service connection claims, because his attempt to reopen each claim has been granted by the Board, VA's duty to notify and assist has been fulfilled. The Merits of the Claims In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Decisions of the Board are final, as are unappealed rating actions of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. The Court has held that the new and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The May 1968 rating decision is final. 38 C.F.R. § 20.1103. While the veteran was notified of the denial in May 1968, he did not submit a Notice of Disagreement (NOD) within the time period allowed. Thus, neither the left knee claim nor the tincture of merthiolate claim may be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108; 38 C.F.R. § 3.156(a); Glynn v. Brown, 6 Vet. App. 523 (1994). Current regulation requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material." The regulation specifically defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Whether new and material evidence is submitted is a jurisdictional test--if such evidence is not submitted, then the claim cannot be reopened, and the Board does not have jurisdiction to proceed further. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). The evidence considered by the RO in reaching its May 1968 rating decision included some service medical treatment records; a DD Form 214; a VA Form 21-526 dated in January 1968; and the report from a VA medical examination conducted in April 1968. In November 2004, the RO received additional service medical treatment records for the appellant. These records reflect that the appellant was treated in 1966 for injury to his left knee. He was also noted to have sensitivity to tincture of merthiolate which was discovered after he developed a reaction to that compound being placed on the skin of his left lower extremity. The Board notes that the regulation pertinent to this situation, 38 C.F.R. § 3.156(c), was amended, effective October 6, 2006. See 71 Fed. Reg. 52,455-52,457 (Sept. 6, 2006) (codified at 38 C.F.R. § 3.156(c) (2007)). Under the prior regulation, where the new and material evidence consisted of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction (AOJ). This included official service department records which presumably had been misplaced and now been located and forwarded to VA. 38 C.F.R. § 3.156(c) (2006). The regulation stated that this definition meant official service department records which presumably were misplaced and had now been located and forwarded to VA. The Board notes that the preamble in the proposed change of regulation contained a full explanation of the bases for the change in regulation. See 70 Fed. Reg. 35,388-35,390 (June 20, 2005). The preamble noted that the use of the words "new and material evidence" was confusing as it inferred that VA may reopen a claim when service department records were received that were not available before. The effective date of such a claim would be the date of the reopened claim. It was noted that, in practice, when VA received service department records that were previously unavailable at the time of the prior decision, VA may reconsider the prior decision. The effective date assigned would relate back to the date of the original claim, or date entitlement arose, whichever is later. The effective date would not be limited to the date of the claim to reopen. The term "new and material" was removed from 38 C.F.R. § 3.156(c). Currently, 38 C.F.R. § 3.156(c) provides that "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.156(c). Such "relevant official service department records" include, but are not limited to service records that are related to a claimed in- service event, injury, or disease and declassified records that could not have been obtained because the records were classified when VA decided the claim. Id. In the present case, additional service medical records were added to the claims file following the last final rating decision in May 1968 in which the appellant's claims for service connection for a left knee injury and for a rash related to sensitivity to tincture of merthiolate were denied. One such record, dated in November 1966, indicates that the appellant had been treated for a left knee injury diagnosed as a severe strain and a ligament injury. Another such record, dated in November 1967, indicates that the appellant was allergic to tincture of merthiolate. This allergy had been discovered in service when he developed a skin condition of his leg after the tincture was applied to it. As this evidence is pertinent to the appellant's left knee and sensitivity claims, and as this evidence was not available for consideration at the last final May 1968 rating decision, it serves as a basis for reopening the claims under 38 C.F.R. § 3.156(c) (2004). Having reopened the claims, they are addressed in the REMAND section which follows the ORDER below. ORDER New and material evidence having been received to reopen the previously denied claims of entitlement to service connection for a left knee disorder and the residuals of sensitivity to tincture of merthiolate, the appeal is granted to this extent only. REMAND A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED to the RO for action as described below. The evidence of record contains a request for VA medical examinations. As noted by the appellant's representative during the September 2007 Board hearing, the appellant has not been afforded any VA medical examination. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (the Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the appellant testified, in September 2007, that he was hit in the side of the head with a pugil stick causing him to fall down and hurt his knee. Review of the appellant's service medical treatment records reveals that the appellant was seen on March 30, 1966, for injury to the left knee while training with pugo stick. He stated that he was punched to the ground falling on his left knee. The current medical evidence indicates that the appellant was diagnosed in 1999 with a right calcified mass at the foramen magnum, probable meningioma, after he sought treatment for headaches on the right side associated with neck ache. The evidence of record also includes medical literature that indicates a possible relationship between head trauma and the development of a meningioma. The record does not contain sufficient competent medical evidence to make a decision on these claims and the Board finds that the duty to assist in this case requires that VA medical opinions should be obtained on remand. Likewise, the medical evidence of record reveals that the appellant was treated for a left knee injury and tincture of merthiolate allergy manifested by a skin rash while he was in service. There is current medical evidence of left knee pathology and continued sensitivity to tincture of merthiolate. The evidence of record contains the opinion of a radiologist that the current left knee and sensitivity conditions are related to the appellant's military service. The record does not contain sufficient competent medical evidence to make a decision on these claims and the Board finds that the duty to assist in this case requires that VA medical opinions, by appropriate specialists, should be obtained on remand. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). To ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. The AMC/RO must review the claims file and ensure that all notifications and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007) and implementing regulations found at 38 C.F.R. § 3.159 (2007) are completed. In particular, the AMC/RO must notify the appellant of the information and evidence needed to substantiate his claims, and of what part of such evidence he should obtain and what part the Secretary will attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The AMC/RO should contact the appellant to obtain the names and addresses of all medical care providers, private or government, that have treated him for any claimed condition since service. After securing the necessary release(s), the AMC/RO should obtain those records that have not been previously secured. In particular, complete VA and private inpatient and outpatient treatment records not already of record should be obtained and associated with the claims file. To the extent there is an attempt to obtain records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative, should also be informed of the negative results, and should be given opportunity to submit the sought- after records. 3. After completing any additional notification and/or development action deemed warranted by the record, the AMC/RO should schedule the veteran for orthopedic and neurological evaluations to determine the nature, onset date and etiology of any left knee and skull pathology. The claims file must be made available to the examiners for review in connection with the examinations and the examiners must state in their reports that said review was conducted. An opinion in response to the questions below should be obtained even if the appellant does not report for the examination(s). The examiners should consider the information in the claims file and the data obtained from the examination (or claims file review alone if the examination is not accomplished) to provide an opinion as to the diagnosis and etiology of any left knee and skull disorder found. All necessary tests and studies should be conducted. The examiners should offer an opinion as to whether the onset of any current disorder is attributable to the veteran's military service. Specifically, the examiners must address the questions of: a. Whether the appellant's current left knee and skull pathology is causally or etiologically related to his period of military service, to include injury in service, namely a knee injury and a blow to the head. b. Whether the veteran's current left knee and skull pathology is related to symptoms or signs he may have had in service or whether the pathology began post-service? and c. Whether the veteran currently has arthritis of the left knee which was incurred within one year of service separation? The examiners should identify the information on which s/he based the opinion. The opinion should adequately summarize the relevant history and clinical findings, and provide detailed explanations as to all medical conclusions rendered. The opinion should also allocate the appellant's various symptoms and manifestations to the appropriate diagnostic entity. In particular, the examiners must discuss the medical opinions of Dr. Bash and the medical literature cited by Dr. Bash in support of his statements as to the etiology and onset of the veteran's claimed pathology. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by each examiner. 4. After completing any additional notification and/or development action deemed warranted by the record, the AMC/RO should schedule the veteran for evaluation by an immunologist or an allergist to determine the nature, onset date and etiology of any pathology related to his exposure in service to tincture of merthiolate. The claims file must be made available to the examiner for review in connection with the examination and the examiner must state in the report that said review was conducted. An opinion in response to the questions below should be obtained even if the appellant does not report for the examination(s). The examiner should consider the information in the claims file and the data obtained from the examination (or claims file review alone if the examination is not accomplished) to provide an opinion as to the diagnosis and etiology of any disorder found to be related to the in-service exposure to tincture of merthiolate. All necessary tests and studies should be conducted. The examiner should offer an opinion as to whether the onset of any current disorder is attributable to the veteran's military service. Specifically, the examiners must address the questions of: a. Whether the appellant's currently has any immunologic or allergic pathology that is causally or etiologically related to his period of military service, to include the exposure to tincture of merthiolate? b. Whether the veteran's current immune system or allergic pathology, if any, is related to symptoms or signs he may have had in service, or whether the pathology began post- service, or whether it clearly and unmistakably existed prior to service? c. Whether the veteran currently has an immune or allergic condition which was incurred within one year of service separation as a result of an in-service event such as exposure to tincture of merthiolate? and d. If any current immune or allergic pathology clearly preexisted military service, can it be concluded with clear and unmistakable certainty that the pre- existing pathology/defect did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the condition? The examiner should identify the information on which s/he based the opinion. The opinion should adequately summarize the relevant history and clinical findings, and provide detailed explanations as to all medical conclusions rendered. The opinion should also allocate the appellant's various symptoms and manifestations to the appropriate diagnostic entity. In particular, the examiner must discuss the medical opinions of Dr. Bash and the medical literature cited by Dr. Bash in support of his statements as to the etiology and onset of the veteran's claimed pathology. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by each examiner. 5. Upon receipt of the VA reports, the AMC/RO should conduct a review to verify that all requested opinions have been provided. If information is deemed lacking, the RO should refer the report to the VA doctor(s) for corrections or additions. See 38 C.F.R. § 4.2. 6. Any additional development suggested by the evidence should be undertaken. If the scheduling of any kind of medical examination, or the obtaining of a medical opinion, is necessary to adjudicate any issue, especially in light of any newly received treatment records, that development should be accomplished. 7. After all appropriate additional development has been accomplished, the AMC/RO should re-adjudicate all of the remaining service connection claims. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, including Allen v. Brown, 7 Vet. App. 439(1995). 8. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed 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). The appellant is hereby notified that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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. 2008). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs