Citation Nr: 0826018 Decision Date: 08/04/08 Archive Date: 08/13/08 DOCKET NO. 05-32 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for arthritis. 2. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for chronic neuropathy with axonal degeneration and fibrosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Motrya Mac, Associate Counsel INTRODUCTION This appeal arises before the Board of Veterans' Appeals (BVA or Board) from a November 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that denied the benefits sought on appeal. The veteran had active service from May 1968 to February 1970. While the veteran has argued that clear and unmistakable error (CUE) was committed in prior decisions, a claim of CUE could not lie in the Board's October 1992 decision and the ratings it subsumed, because it was affirmed by the United States Court of Appeals for Veterans Claims (Court) in November 1994. 38 C.F.R. § 20.1400(b)(1)(2007). In April 2007 the veteran requested a copy of his records and the Board hereby refers this matter to the RO for appropriate action. FINDINGS OF FACT 1. In a decision dated in October 1992, the Board continued the denial the veteran's service connection claims for arthritis and for a neurological disorder and in November 2004 the Court affirmed the Board decision of October 1992. 2. The additional evidence presented since the Board decision of October 1992 is not cumulative or redundant of evidence previously considered and by itself or when considered with previous evidence does relate to unestablished facts necessary to substantiate the claims and does raise a reasonable possibility of substantiating the veteran's claims. CONCLUSIONS OF LAW 1. The October 1992 Board decision, which denied the veteran's service connection claims for arthritis and for a neurological disorder, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 3.104 (2007). 2. New and material evidence has been presented to reopen the claims of service connection for arthritis and chronic neuropathy with axonal degeneration and fibrosis. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the appellant's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of letter from the RO to the appellant dated in April 2004, November 2005, March 2006 and during the Board hearing of March 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The appellant has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. A review of the record discloses that in a decision dated in October 1992 the Board denied to reopen a claim of service connection for a neurological disorder and denied service connection for arthritis. The Board based its decision on findings that evidence added to the record since the November 1987 denial was cumulative and did not tend to show that a neurological disorder was incurred in service or manifested in the first year after service. The Board denied service connection for arthritis because it was not shown by the clinical evidence of record to have been present during the veteran's active service, or within one year after separation. In November 1994 the Court affirmed the October 1992 Board decision. Although prior unappealed decisions are final, they may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO reopened the claims in November 2004. Nevertheless, regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As the additional evidence, in the form of the private opinions dated in January 2004 and February 2005 relate to an unestablished fact necessary to substantiate the claim, that is, evidence showing that post-service arthraglia and neuropathy may be related to service, the absence of which was the basis for the prior denial of the claim, the evidence is new and material and raises a reasonable possibility of substantiating the claim and the claims are reopened. ORDER New and material evidence having been presented, the claim of service connection for arthritis is reopened, and to this extent only, the appeal is granted. New and material evidence having been presented, the claim of service connection for chronic neuropathy with axonal degeneration and fibrosis is reopened, and to this extent only, the appeal is granted. REMAND A preliminary review of the record after determining that new and material evidence has been submitted to reopen previously denied claims for service connection for arthritis and for chronic neuropathy with axonal degeneration and fibrosis discloses a need for further development prior to final appellate review. In this regard, in October 2005 and April 2006 the veteran indicated there were outstanding service medical records. These records need to be obtained and associated with the claims folder. In addition, the medical evidence of record is in conflict regarding the etiology of the veteran's claimed disabilities. On VA examination in November 1985, he complained of numbness on the ball of his left foot; the diagnosis was subjective sensory change which the examiner thought may be related to circulatory insufficiency. VA x-rays in November 1985 showed minimal degenerative changes in both hip joints, knees and wrists were normal. A letter from a private doctor, Dr. Subramony, in March 1987 indicates the veteran complained of intermittent numbness of the fingers and feet and electromyography testing suggested mild polyneuropathy characterized predominantly by distal fasciculations. In January and April 1989 private doctors, Doctors Windebank and Bourque concluded that the veteran had spinacerebellar degeneration. In July 1989 Dr. Subramony explained the veteran's problem was one of imbalance which could be sensory ataxia. The etiology was unclear, none of the symptoms could be neurological, however some of the symptoms, such as arthritis, could be manifestations of an immune process. On VA neurologic evaluation in July 1991, the examiner noted the veteran was evaluated by at least two board certified neurologists who were unable to make a definitive diagnosis but who found on examination and on tests, mild to moderate sensory ataxia. The VA examiner was of the opinion that constellation of neurologic abnormalities suggested problems in the posterior columns and/or peripheral nerves of uncertain cause and no clear-cut single diagnosis. The examiner noted that further testing would not lead to a more definitive diagnosis. On VA rheumatology examination in June 1991, the veteran's joints were normal with no abnormal physical findings related to the joints except for a fracture of the right ankle which had occurred approximately one month prior. The examiner was of the opinion that the veteran's neurologic syndrome was not related to his history of joint pain. X-rays of the hands, both knees, lumbosacral spine and hips showed no arthritis. A private opinion dated in January 2004, from Dr. Bash, indicates the veteran has had several symptoms that have been present since service. He pointed out that the veteran had hip arthralgia during service in 1968 and had positive x-rays in 1985. He related the degenerative hip changes to service because there was no other plausible etiology. Dr. Bash opined that the veteran's cerebellar syndrome likely began during service for various reasons including the veteran's multi system symptoms during service. On VA examination in November 2004, the examiner concluded it would be speculative to establish the onset of the veteran's neurologic symptoms and found that the veteran's joint complaints were not due to service. In November 2006, the examiner stated the veteran certainly had mixed central and peripheral disorders, but he could not tie present neurologic symptoms to the athralgias expressed in service without speculation. In February 2005, Dr. Lenoir was of the opinion that the veteran's current neurological conditions, to include peripheral neuropathy, started during service and continue to the present day. Given the state of the medical evidence, the Board is of the opinion that there is insufficient medical evidence of record to decide the claim. As such, the Board is of the opinion that the veteran should be afforded an additional examination in an attempt to more clearly determine the etiology of the claimed disorders and any possible relationship to service. Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the veteran will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: 1. The RO should contact the NPRC and request the veteran's service treatment records and hospital records from May 1968 to September 1970. 2. After the development requested in the first paragraph has been complete, the veteran should be afforded an examination by a physician who has not previously examined the veteran to determine the nature and etiology of any arthritis/arthritic symptoms and peripheral neuropathy. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and following this review and the examination, offer comments and an opinion as to the most likely etiologies of any currently diagnosed arthritis/arthritic symptoms and neuropathy. The examiner is specifically requested to offer an opinion as to whether any arthritis/arthritic symptoms and neuropathy are causally or etiologically related to service, specifically due to the veteran's joint pain documented in July 1968 and August 1968. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion can not be rendered without resort to speculation, the examiner is requested to explain why this is the case. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the veteran's claims file, or, in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs