Citation Nr: 1004149 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 06-14 164A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for arthritis of the right knee. 2. Entitlement to service connection for arthritis of the left knee. 3. Entitlement to service connection for arthritis of the right hip. 4. Entitlement to service connection for arthritis of the left hip. 5. Entitlement to service connection for arthritis of the right ankle. 6. Entitlement to service connection for arthritis of the left ankle. 7. Entitlement to service connection for arthritis of the right foot. 8. Entitlement to service connection for arthritis of the left foot. 9. Entitlement to service connection for limited right hand strength. 10. Entitlement to service connection for a left thumb condition. 11. Entitlement to service connection for plantar warts. 12. Entitlement to service connection for a condition of the right upper jaw. 13. Entitlement to service connection for diarrhea. 14. Entitlement to service connection for chronic constipation. 15. Entitlement to service connection for muscle pain. 16. Entitlement to service connection for joint pain. 17. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 18. Entitlement to service connection for hypertension. 19. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for chronic contact dermatitis of the back, claimed as due to a TENS unit prescribed by the Department of Veterans Affairs for a service-connected lumbar spine disability. 21. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residual burns of the back, claimed as due to a TENS unit prescribed by the Department of Veterans Affairs for a service-connected lumbar spine disability. 23. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a gastrointestinal disorder, claimed as due to medication prescribed by the Department of Veterans Affairs for service-connected lumbar spine and fibromyalgia disabilities. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to May 1976, and from November 1990 to May 1991. He had additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) from December 2004 and September 2006 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims enumerated above. In various written correspondence received from the Veteran, he raised entitlement to service connection for a gastrointestinal disorder, secondary to medication prescribed for his service-connected lumbar spine and fibromyalgia disabilities. As this claim has not yet been addressed by the RO, the Board refers the claim to the RO for appropriate action. The issues of entitlement to service connection for hypertension, entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for chronic contact dermatitis and residual burns of the back, claimed as due to a TENS unit prescribed by the Department of Veterans Affairs for a service-connected lumbar spine disability, and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a gastrointestinal disorder, claimed as due to medication prescribed by the Department of Veterans Affairs for service-connected lumbar spine and fibromyalgia disabilities 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. FINDINGS OF FACT 1. In a statement received at the RO in October 2008, the Veteran withdrew his appeals concerning entitlement to service connection for arthritis of the right knee, left knee, right hip, left hip, right ankle, left ankle, right foot, and left foot, entitlement to service connection for limited right hand strength, a left thumb condition, plantar warts, and a condition of the right upper jaw, diarrhea, chronic constipation, muscle pain, and joint pain. 2. The claim for service connection for hypertension was previously denied in an October 2002 rating decision. The Veteran was notified of the decision but did not perfect an appeal. 3. The evidence received since the October 2002 decision is new, in that it is not cumulative and was not previously considered by decision makers. The evidence is also material because it raises a reasonable possibility of substantiating the Veteran's claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals of the issues concerning entitlement to service connection for arthritis of the right knee, left knee, right hip, left hip, right ankle, left ankle, right foot, and left foot, entitlement to service connection for limited right hand strength, a left thumb condition, plantar warts, and a condition of the right upper jaw, diarrhea, chronic constipation, muscle pain, and joint pain have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. § 20.204 (2009). 2. The October 2002 rating decision that denied the claim for service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2009). 3. New and material evidence has been received to reopen the claim for service connection for hypertension. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal An appellant may withdraw an appeal in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b) (2009). The withdrawal should be filed with the RO entering the appealed decision, if there has not yet been notice of the transfer of the appeal to the Board. 38 C.F.R. § 20.204(b)(3) (2009). In May 2006, the Veteran submitted a VA Form 9 perfecting his appeals as to the issues of entitlement to service connection for arthritis of the right knee, left knee, right hip, left hip, right ankle, left ankle, right foot, and left foot, entitlement to service connection for limited right hand strength, a left thumb condition, plantar warts, and a condition of the right upper jaw, as identified in the March 2006 statement of the case. In September 2007, the Veteran submitted a VA Form 9 perfecting his appeals as to the issues of entitlement to service connection for diarrhea, chronic constipation, muscle pain, and joint pain, as identified in the August 2007 statement of the case. In a written statement received at the RO in October 2008, and prior to notice of transfer of the appeal to the Board, the Veteran stated that he was withdrawing the appeal as to those issues. The only issues on which he intended to continue an appeal included service connection for hypertension, entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for chronic contact dermatitis and residual burns of the back, claimed as due to a TENS unit prescribed by the Department of Veterans Affairs for a service-connected lumbar spine disability, and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a gastrointestinal disorder, claimed as due to medication prescribed by the Department of Veterans Affairs for service-connected lumbar spine and fibromyalgia disabilities. The Veteran's written statement satisfies the requirements for the withdrawal of an appeal. As the appellant has withdrawn his appeals as to the issues of entitlement to service connection for issues enumerated from 1 through 16, there remain no allegations of errors of fact or law for appellate consideration concerning these issues. The Board therefore has no jurisdiction to review the issues. Accordingly, the issues of entitlement to service connection for arthritis of the right knee, left knee, right hip, left hip, right ankle, left ankle, right foot, and left foot, entitlement to service connection for limited right hand strength, a left thumb condition, plantar warts, and a condition of the right upper jaw, diarrhea, chronic constipation, muscle pain, and joint pain are dismissed. New and Material Evidence The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the veteran in substantiating the aspect of his claim decided in this decision. The RO initially denied the Veteran's claim of entitlement to service connection for hypertension in an October 2002 rating decision. At the time of the October 2002 denial, the RO found that the Veteran's hypertension did not have its initial onset during his active service or within one year of his separation from service, and the claim was denied. A finally adjudicated claim is an application that has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2008). Thus, the October 2002 decision became final because the Veteran did not file a timely appeal. The claim for service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The appellant filed this application to reopen his claim in April 2003. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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) (2008). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before VA at the time of the prior final decision consisted of the Veteran's service treatment records, the Veteran's post-service treatment records, and his own statements. Additional evidence received since the October 2002 denial includes records dated since July 2002 demonstrating that the Veteran has been treated for hypertension, and an October 2008 statement from the Veteran's private chiropractor relating the Veteran's hypertension to medications he had been prescribed or to bodily trauma the Veteran sustained in service. Newly submitted evidence also includes the Veteran's personal statements wherein he reiterated his belief that his hypertension was related to active military service. The treatment records dated since July 2002 demonstrating a diagnosis of, and treatment for, hypertension do not constitute evidence that is new and material, as these records do not relate the hypertension to active service. Accordingly, the additional treatment records associated with the claims file since the last final denial are not sufficient to reopen the claim. The October 2008 opinion, however, constitutes evidence that is both new and material, as the opinion suggests that the Veteran's hypertension may be related to a medication prescribed for a service-connected disability, or that it is related to bodily trauma sustained in active service. The opinion has been presumed credible for the purpose of determining whether to reopen the claim. The new evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. Accordingly, the claim for service connection for hypertension is reopened. (CONTINUED ON NEXT PAGE) ORDER The issues of entitlement to service connection for arthritis of the right knee, left knee, right hip, left hip, right ankle, left ankle, right foot, and left foot, entitlement to service connection for limited right hand strength, a left thumb condition, plantar warts, and a condition of the right upper jaw, diarrhea, chronic constipation, muscle pain, and joint pain are dismissed without prejudice. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension; to that extent only, the appeal is allowed. REMAND Additional development is needed prior to further disposition of the claims of entitlement to service connection for hypertension, and compensation under the provisions of 38 U.S.C.A. § 1151. The Veteran contends that his hypertension was caused or aggravated as a result of the pain associated with his service-connected fibromyalgia and lumbar spine disability. In an October 2008 letter, a chiropractor indicated that the Veteran's hypertension may have resulted from various medications he has been prescribed over the years, or as a result of bodily trauma sustained in service. The letter, however, does not specify which medications might have been responsible for inducing or aggravating hypertension, and the chiropractor, in terms of bodily trauma, only specifically mentioned trauma to the cervical spine, for which the Veteran is not service-connected. The opinion provided by the Veteran's private physician indicating that his hypertension may likely be related to his active service is too tenuous a basis upon which to grant the Veteran's claim for service connection. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of a claimed disorder or any such relationship). The Veteran has not yet been afforded an examination. Because a VA examiner has not yet opined as to the likely etiology of the Veteran's hypertension, the Board finds that an opinion is necessary in order to fairly decide the merits of the Veteran's claim. The Veteran contends that the TENS unit prescribed to alleviate pain associated with his service-connected lumbar spine disability resulted in burns on his lower back and chronic contact dermatitis. The record indeed reflects that the TENS unit has been determined to be the cause of his complaints. Specifically, VA clinical records dated in July 2004 show that the Veteran was diagnosed with "rash on the low back skin as a result of the pads for the TENS unit." He was ultimately advised to discontinue the use of the TENS unit, despite that it was effective in alleviating his back pain. In an October 2008 letter, the Veteran's treating chiropractor stated that the TENS unit had caused permanent damage to the Veteran's skin. While it thus appears that the TENS unit resulted in skin irritation, it is not clear whether the skin irritation was a foreseeable consequence of the use of a TENS unit, or whether the Veteran's burns and chronic dermatitis resulted from carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. Accordingly, a remand to address these questions is necessary. Lastly, the Veteran contends that medication prescribed for his service-connected lumbar spine and fibromyalgia disabilities has resulted in chronic gastrointestinal disorders. The record in this regard reflects both that the Veteran has a lengthy history of NSAID prescription use, prescribed by VA for his service-connected back disability, and that he has been diagnosed with gastroesophageal reflux disease (GERD) and gastrointestinal irritation secondary to use of Ibuprofen. It is not clear from a review of the record whether the Veteran's gastrointestinal problems were a foreseeable consequence of the use of pain medication prescribed for the Veteran's service-connected lumbar spine and fibromyalgia disabilities, or whether the Veteran's gastrointestinal disorders resulted from carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. Accordingly, a remand to address these questions is necessary. Accordingly, the case is REMANDED for the following actions: 1. Forward the claims file to a qualified physician for the purpose of reviewing the claims file and rendering an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is related to his active service, including whether it was caused or aggravated by the pain associated with, or the medication prescribed for, any service-connected disability. No additional examination of the Veteran is necessary, unless the examining physician determines otherwise. The claims file should be reviewed by the examiner and the report should note that review and discuss the private and VA medical records of treatment relating to hypertension. The rationale for all opinions, with citation to relevant medical findings, must be provided. 2. Forward the claims file to a qualified VA physician for the purpose of obtaining an opinion addressing whether the skin irritation (alleged burns and chronic contact dermatitis) was a foreseeable consequence of the use of a TENS unit, and whether the Veteran's burns and chronic dermatitis resulted from carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. No further examination of the veteran is required unless the examiner determines otherwise. The claims file must be made available to, and reviewed by, the examiner, and the examiner must state that the claims file was reviewed in the report provided. A complete rationale for all conclusions and opinions must be provided. 3. Schedule the Veteran for a gastrointestinal examination to obtain an opinion as to whether any diagnosed gastrointestinal disorder was a foreseeable consequence of the use of medication prescribed for the service- connected fibromyalgia or lumbar spine disabilities, and whether the Veteran's gastrointestinal disorders resulted from carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. The claims file must be made available to, and reviewed by, the examiner, and the examiner must state that the claims file was reviewed in the report provided. A complete rationale for all conclusions and opinions must be provided. 4. If the decisions remain adverse to the Veteran, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board is remanding. 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. 2009). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs