Citation Nr: 1002045 Decision Date: 01/13/10 Archive Date: 01/22/10 DOCKET NO. 06-10 149 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a left knee disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disorder. 4. Entitlement to service connection for a heart disorder, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for a low back disability, to include as secondary to knee disability. 6. Entitlement to service connection for diabetes mellitus due to exposure to herbicides. 7. Entitlement to service connection for depression, to include as secondary to diabetes mellitus and/or his service- connected right knee disability. 8. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to diabetes mellitus. 9. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to diabetes mellitus. 10. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus. 11. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus. 12. Entitlement to service connection for diabetic nephropathy, claimed as urinary problems. 13. Entitlement to a rating in excess of 10 percent for synovitis of the right knee. REPRESENTATION Veteran represented by: David L. Huffman, Attorney ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to May 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision issued in November 2004, in which the RO determined that no new and material evidence had been received to reopen a previously- denied claim for service connection for a left knee disability, denied the Veteran's remaining claims for service connection, and granted and assigned a 10 percent rating for synovitis of the right knee, effective June 25, 2004. The Veteran perfected appeals to each of the RO's denials. The Board has considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). In that decision, the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In this case, in an unappealed February 1984 rating decision, the VA, in part, denied service connection for atrial fibrillation with premature ventricular beats and an enlarged heart. At the time of the original denial of service connection for the claimed disability, there was no evidence of a current heart disorder only of symptoms, which were not considered a disability under VA regulations. Later, in the October 2004 rating decision, on appeal, the VA denied service connection for chronic atrial fibrillation with myocardial infarction (MI) secondary to drug abuse as secondary to diabetes mellitus. The question thus arises whether the Veteran's claim for service connection for a heart disorder on a secondary basis represents a claim that is separate and distinct from the claim previously-denied in February 1984. One could argue that, because presumptive service connection for diabetes mellitus due to exposure to herbicides is a liberalizing law put in place after the February 1984 rating decision, which is now final, the Veteran's subsequently filed secondary service connection claim asserts rights that did not exist at the time of the prior claim. See Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994) (holding that when a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirement for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation); see also Sawyer v. Derwinski, 1 Vet. App. 130. 133 (1991) (holding that a claim that asserts rights that did not exist at the time of the prior claim is necessarily different). One could also argue, however, that reliance upon a new etiological theory, in this case, the contention that the Veteran has a heart disorder due to diabetes mellitus, is insufficient to transform a claim that has been previously denied into a separate and distinct, or new, claim. Regardless, in this case, the Board's decision is favorable, at least partially; therefore, the Veteran is not prejudiced by the Board's characterization of his claim. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). As such, the Board finds that the Veteran is seeking service connection for the same disability (a heart disorder) as that for which service connection was denied in 1984. Thus, new and material evidence is required to reopen the previously- denied claim for service connection for a heart disorder. As the Board must first decide whether new and material evidence has been received to reopen the Veteran's claims for service connection for a left knee disability and a heart disorder before it can address these matters on the merits- and in light of the Board's favorable action on the Veteran's petition to reopen the claims-the Board has characterized the appeal as to these matters as encompassing the first four issues listed on the title page. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board acknowledges that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, when the Veteran specifically requests service connection for posttraumatic stress disorder (PTSD), but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed as only a PTSD claim, and should be considered as a claim for a psychiatric disorder. Here, since the Veteran has been diagnosed only with depression, the Board will not recharacterize the claim on appeal in accord with Clemons. The Veteran's service-connection and increased rating claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO for additional development. As a final preliminary matter, in April 2004 and September 2009, the Veteran's attorney cancelled scheduled April 2004 Decision Review Officer (DRO) and September 2009 Travel Board hearings, respectively. Thus, the hearing requests are deemed withdrawn. See 38 C.F.R. § 20.704 (2009). FINDINGS OF FACT 1. In an unappealed February 1984 rating decision, the Newark, New Jersey RO (Newark RO), in part, denied service connection for a left knee disability and for atrial fibrillation with premature ventricular beats and an enlarged heart. 2. The evidence associated with the claims file since the February 1984 rating decision includes evidence that is not cumulative and redundant of evidence of record at the time of the prior denial and relates to an unestablished fact necessary to substantiate the claims for service connection for a left knee disability and for a heart disorder. CONCLUSIONS OF LAW 1. The February 1984 rating decision, denying service connection for a left knee disability and for atrial fibrillation with premature ventricular beats and an enlarged heart, is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.201, 20.1103 (2009). 2. As evidence received since the February 1984 rating decision is new and material, the criteria for reopening the Veteran's claims for service connection for a left knee disability and for a heart disorder are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Specific to requests to reopen a previously-denied claim for service connection, VA must provide notice that describes the basis for the previous denial, as well as the reopening criteria and the criteria for establishing the underlying claim for service connection found to be unsubstantiated in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Given the Board's favorable disposition of the petition to reopen the Veteran's previously-denied claims for service connection for a left knee disability and for a heart disorder, the Board finds that all notification and development actions needed to fairly adjudicate the appeal with regard to these issues have been accomplished. II. Petition to Reopen In a February 1984 rating decision, the Newark RO initially denied service connection for a left knee disability, noting that no current left knee disability or heart disorder was shown by the evidence of record. In a letter dated later the same month, the Newark RO gave notice of the denial and informed the Veteran that he could initiate an appeal by filing an NOD at any time within one year of that letter. Although the Veteran was informed of the February 1984 rating action and his appellate rights, he did not initiate an appeal to the Board within one year of notification of this decision. Therefore, the February 1984 rating decision became final as to the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. Here, the Veteran's petition to reopen the previously-denied claims for service connection for a left knee disability and for a heart disorder was received by VA in June 2004. Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial was the February l984 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Because the basis of the prior final denial in February 1984 was that no chronic left knee disability or heart disorder was shown by the evidence of record, in this case, the new and material must pertain to a currently-diagnosed left knee disability and/or heart disorder and, in the presence of such disability, a link to service. In support of his claims to reopen, the Veteran submitted various statements and post- service medical records. The newly-submitted medical records, along with Social Security Administration (SSA) and VA examination reports, reflect diagnoses of severe degenerative joint disease of the left knee, status post total knee replacement, and hypertension. The Board acknowledges that medical records reflect that the Veteran's hypertension is resolved; however, in McClain v. Nicholson, 21 Vet. App. 319, 323 (2007), the Court held that a finding that the veteran had disability "at some point during the processing of his claim," satisfied the service connection requirement for manifestation of current disability. Thus, resolving any doubt in the Veteran's favor, the Board does find that there is medical evidence diagnosing a current heart disorder. The Board finds that this additional evidence is neither cumulative nor duplicative of evidence previously of record nor was it previously considered by agency adjudicators, and as such it is "new." As noted above, the Veteran was previously denied service connection because available evidence failed to show a chronic left knee disability or heart disorder. As the new evidence now includes such diagnoses, the evidence relates to facts that are necessary to substantiate the Veteran's claims. Moreover, the Board also finds this evidence provides a reasonable possibility of substantiating the claim as it bears directly and substantially upon the specific matters under consideration and must be considered in order to decide the merits of the claims. Accordingly, the Board concludes that the criteria for reopening service connection for a left knee disability and a heart disorder are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence sufficient to reopen a claim for service connection for a left knee disability has been received, to this limited extent, the appeal is granted. As new and material evidence sufficient to reopen a claim for service connection for a heart disorder has been received, to this limited extent, the appeal is granted. REMAND In light of the Veteran's contentions that he served in Vietnam during the Vietnam era and should be presumed to have been exposed to herbicides, warranting service connection for diabetes mellitus; that his right knee disability is more severe than the assigned rating reflects; and that many of the claimed disabilities are secondary to diabetes mellitus or his knee disability, the Board finds that a remand is needed to properly evaluate his claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered until both are adjudicated). As such, it follows that Board resolution of the claims remaining on appeal, at this juncture, would be premature pending additional development. Exposure to Herbicides A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (2009). "Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313 (2009). Additionally, in service connection claims involving herbicide agent exposure as a result of service in Vietnam, diabetes mellitus Type II may be presumed to have been incurred in-service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2009). Here, the Veteran asserts that he served on temporary duty (TDY) with the 99th Red Horse Unit at Cam Ranh Bay in the Republic of Vietnam for two to three months and the evidence shows that he was diagnosed with diabetes mellitus in 1990. He claims that his service personnel records will corroborate his statements. Therefore, the duty to assist requires that VA obtain these potentially relevant service personnel records, which are within the custody of the government. 38 C.F.R. § 3.159. The RO should ask the Veteran to assist by providing as much detail as possible about the dates of service with the 99th Red Horse Unit at Cam Ranh Bay in the Republic of Vietnam. In this regard, the Board notes that, in letters dated in July and August of 2004, the Veteran was notified that the RO was having difficulty verifying that he had served in Vietnam and asked him to provide evidence to aid the RO in confirming that he served on TDY in Vietnam. But the Veteran did not respond. The Veteran is reminded that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Increased Rating Additionally, with respect to the Veteran's increased rating claim, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Although the Veteran's most recent VA general medical examination was in October 2004, the Veteran maintains that his symptoms warrant at least a 20 percent rating. Thus, after the RO has had an opportunity to obtain the Veteran's private treatment records, he should be scheduled for another orthopedic examination to ascertain the current nature of his right knee disability. Service Connection Initially, in view of the Board's decision to reopen the Veteran's claims for service connection for a left knee disability and for a heart disorder, VA should consider these claims on the merits, in the first instance, to avoid any prejudice to the appellant. Under 38 C.F.R. § 3.310 (which was revised effective in October 2006), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2009). Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). To ensure that all due process requirements are met, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to his appeal. In particular, the RO should ensure that the Veteran is properly notified of what evidence is needed to support service connection on a secondary basis. The RO should also ensure that (in addition to the above), its notice meets the requirements of the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006), such notice should include an explanation of how disability ratings and effective dates are established. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Finally, the RO should schedule the Veteran for additional examination(s) in conjunction with his service-connection claims. The Veteran is hereby advised that failure to report to any scheduled examination, without good cause, may result in a denial of the claims on appeal. See 38 C.F.R. § 3.655 (2009). Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to his appeal that is not currently of record. The RO should also explain the type of evidence that is his ultimate responsibility to submit to establish service connection secondary to a service-connected disability and an increased rating on an extraschedular basis. The RO should ask the Veteran to provide as much detail as possible about the dates that he served with the 99th Red Horse Unit at Cam Ranh Bay in the Republic of Vietnam. The RO should specifically request that the Veteran provide authorization to enable VA to obtain all outstanding pertinent records from Drs. Hanson (since March 3, 2006) and Zelinski (since March 20, 2001), from the Weirton Medical Center (since March 11, 2004) and any other private healthcare provider identified by the Veteran for treatment of his right knee disability and other claimed disorders. The RO should ensure that its letter meets the requirements of Dingess, cited to above, with regard to establishing disability ratings and effective dates. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. Obtain a copy of the Veteran's complete service personnel records from his Official Military Personnel File (OMPF), including all records of his assignments, whether permanent or TDY stations; all travel orders; pay stubs which reflect special pay status, travel vouchers, and all TDY orders. If efforts to obtain the Veteran's OMPF are unsuccessful through the National Personnel Records Center, request verification of the reported TDY in Vietnam through the Air Force Personnel Center (AFPC) at Randolph Air Force Base, Texas, the Defense Finance and Accounting Service (DFAS), the U.S. Army and Joint Services Records Research Center (JSRRC) and/or other appropriate depository. The RO should provide the JSRRC or other depository with the appropriate information, as needed, showing service dates, duties, and units of assignment and copies of the Veteran's statements pertaining to service in Vietnam. Associate all documents obtained with the claims file. All efforts to obtain these records, and the responses received, must be documented in the claims file, and must continue until it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity have been associated with the claims file, or the time period for the Veteran's response has expired, arrange for him to undergo VA examinations-heart and kidney disorders, psychiatric, and orthopedic examinations, by appropriate examiners, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to each examiner designated to examine the Veteran, and each examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests (to include x-rays, as necessary) and studies should be accomplished, and all clinical findings should be reported in detail. Heart and kidney disorders examination- the examiner(s) should provide details about the onset, frequency, duration, and severity of the symptoms of any cardiovascular or kidney disorder found, to include hypertension and/or diabetic nephropathy. The examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder was first manifest during service or had its onset within one year of the Veteran's discharge from service on May 16, 1974. The examiner should further comment on whether, and to what extent, such diseases were caused or worsened beyond natural progression by type II diabetes mellitus or the Veteran's right knee disability. Psychiatric examination-the examiner should provide details about the onset, frequency, duration, and severity of the symptoms of any psychiatric disorder found, to include depression. The examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder was first manifest during service or had its onset within one year of the Veteran's discharge from service on May 16, 1974. The examiner should further comment on whether, and to what extent, such disorder was caused or worsened beyond natural progression by type II diabetes mellitus or the Veteran's right knee disability. Orthopedic examination-the examiner should provide details about the onset, frequency, duration, and severity of the symptoms of any left knee or low back disorder found, to include arthritis. The examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder was first manifest during service or had its onset within one year of the Veteran's discharge from service on May 16, 1974. The examiner should further comment on whether, and to what extent, such disorders were caused or worsened beyond natural progression by type II diabetes mellitus or the Veteran's right knee disability. The orthopedic examiner should also note the range of motion for the right knee and the presence and extent of any ankylosis, instability, arthritis, painful motion, functional loss due to pain, excess fatigability, weakened movement, and additional disability due to flare-ups. All examiners should set forth all examination findings and the complete rationale for any conclusions reached in printed reports. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's service- connection claims, to include on a direct, presumptive and secondary basis, if warranted, and increased rating claim, to include on an extraschedular basis, in light of all pertinent evidence and legal authority. The RO should document its consideration of whether "staged ratings," pursuant to the Hart decision, cited to above, are warranted. If any benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. 2009). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs