Citation Nr: 1010809 Decision Date: 03/23/10 Archive Date: 03/31/10 DOCKET NO. 07-12 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for gastrointestinal disability, claimed as Whipple's disease. 2. Entitlement to service connection, to include on a secondary basis, for eye disability. 3. Entitlement to an effective date prior to March 7, 2002, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from March 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2003 and August 2008 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that service connection for eye infections was denied in an unappealed February 1979 rating decision. Review of the current eye disorder claimed by the Veteran shows that he is seeking service connection for disorders which were not diagnosed or otherwise considered at the time of February 1979 rating decision. For this reason, the Board has characterized the current eye issue as an original claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The Board also notes that although the Veteran had perfected appeals of a number of other issues, in a November 2009 statement he withdrew his appeal of all matters other than those listed on the title page of this action. On the November 2009 statement, he indicated that he would "drop" his appeal for service connection for hypertension if he was service connected for heart disability. The record shows that at the time he wrote this statement, service connection had recently been granted for cardiovascular disability. The RO consequently deemed the hypertension issue to have been withdrawn. To ensure this is what the Veteran intended, the RO explained how it was interpreting the November 2009 statement in a supplemental statement of the case issued later than month. The representative thereafter presented argument only as to the issues listed on the title page of this action, and the Veteran has not suggested that the RO was incorrect to interpret the November 2009 statement as constituting a withdrawal of all issues other than the ones addressed in this action. The issue of whether clear and unmistakable error exists in a May 12, 1964 rating decision has been raised by a November 2009 statement within the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a gastrointestinal disability on a de novo basis, and for eye disability 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. Service connection for gastrointestinal disability, to include Whipple's disease, was denied in an unappealed February 1979 rating decision. 2. Evidence submitted since the February 1979 rating decision includes competent evidence suggesting a possible medical nexus between the claimed Whipple's disease and his service-connected PTSD. This evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 3. Service connection for PTSD, with an assigned effective date of March 7, 2002, was granted in a March 2003 rating action; the Veteran was notified of the decision and of his appellate rights, but he did not appeal. 4. No communication from the Veteran or any representative seeking entitlement to an earlier effective date for the grant of service connection for PTSD was received until April 2007. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the service connection claim for gastrointestinal disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 2. The May 2003 rating decision granting service connection for PTSD and awarding an effective date therefor of March 7, 2002, is final. 38 U.S.C.A. § 7105(c) (West 2002). 3. As to the claim for an effective date prior to March 7, 2002, for the grant of service connection for PTSD, there is no remaining case or controversy over which the Board has jurisdiction, and the appeal is dismissed. 38 U.S.C.A. §§ 7104, 7105, 7107 (West 2002); 38 C.F.R. §§ 19.4, 20.101, 20.200, 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In October 2002, July 2003, February 2004, April 2005, May 2008, July 2008 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, these letters collectively provided him with the general criteria for the assignment of an effective date and initial rating. The Board notes that, in the present case, initial notice was issued prior to the May 2003 and August 2008 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In any event, following all of those notices, the claims were last readjudicated in a November 2009 supplemental statement of the case. With regard to the Veteran's application to reopen a previously denied service connection claim, any question as to the adequacy of any notice provided by VA therein is rendered moot by the Board's actions in reopening this claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. A VA examination is not necessary in this case because the earlier effective date claim turns on the law, and not medical evidence. The Board also observes that the RO attempted to get records from the Social Security Administration and the U.S. Forest Service, but no such records were available; the Social Security Administration indicated in August 2003 that the Veteran's records had been destroyed. Any further attempts to obtain records from either source would be futile, and in any event would not affect the disposition of the earlier effective date claim. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. II. New and material evidence - Gastrointestinal disability The Veteran seeks to reopen his service connection claim for gastrointestinal disability, claimed as Whipple's disease. In a February 1979 rating decision, the RO denied the Veteran service connection for a stomach condition, claimed as Whipple's disease. Because he did not file a timely notice of disagreement regarding this determination, the February 1979 denial became final. 38 U.S.C.A. § 7105 (West 2002). In its development of this appeal, the RO appeared to consider the Veteran's service connection claim for Whipple's disease on the merits, without consideration of whether new and material evidence had been submitted. Nevertheless, the Board must address the issue of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Under applicable criteria, a claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. If the claim is reopened, it will be reviewed on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. §§ 5108, 7105 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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) (2009). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening the appellant's claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995). In the present case, the Veteran has submitted additional evidence in support of his application to reopen. For the reasons to be discussed below, at least some of this evidence is new and material, and his claim may be reopened for consideration on the merits. In support of his claim, additional evidence has been submitted which suggests a nexus between PTSD and gastrointestinal disabilities. Specifically, the Veteran was afforded a March 2009 VA medical examination in which a VA examiner noted that "stress, depression, and anxiety" can result in chronic gastrointestinal symptoms. The examiner also diagnosed the Veteran with gastroesophageal reflux disease and indicated this disability was secondary to PTSD. The Board notes that subsequent to February 1979, the Veteran has been awarded service connection for both PTSD and gastroesophageal reflux disease. While the Veteran's primary contention is that his Whipple's disease had its onset during military service, service connection may also be awarded for a disability which is due to or aggravated by a service- connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995); see also Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). This evidence is new, in that it was not previously submitted at the time of the February 1979 denial. Additionally, the newly submitted evidence is not cumulative and redundant of evidence already of record, as it suggests a plausible basis for a medical nexus between the Veteran's claimed Whipple's disease and his service-connected gastroesophageal reflux disease and PTSD. No such evidence was of record at the time of the prior denial, when the RO found no evidence of Whipple's disease during military service. Next, because this evidence establishes a potential theory for the award of service connection on a secondary basis, it is material, as it bears directly and substantially upon the specific matter under consideration. Additionally, this evidence, by itself or in connection with evidence previously assembled, raises a reasonable possibility of substantiating the claim. Based on the above, the Board finds the aforementioned additional evidence to be both new and material. The Veteran having submitted new and material evidence, his service connection claim for Whipple's disease must be reopened and considered on the merits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). III. Earlier effective date The Veteran seeks an effective date prior to March 7, 2002, for the award of service connection for PTSD. The effective date of an evaluation and award of compensation based on an original claim will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2009). As noted above, the Veteran seeks an effective date prior to March 7, 2002, for the award of service connection for PTSD. This award was originally made within a May 2003 rating decision, and the Veteran was informed of this decision that same month. The Veteran did not appeal the May 2003 rating decision within a year, and it became final. See 38 U.S.C.A. § 7105 (West 2002). Thereafter, the Veteran filed an earlier effective date claim with the RO in April 2007, seeking an effective date prior to March 7, 2002, for the award of service connection for PTSD. The Board also observes that within a November 2009 VA Form 9, the Veteran alleged there was clear and unmistakable error within prior RO rating decisions which either failed to award service connection for PTSD, or failed to adjudicate this issue. The Board construes these allegations as a proper claim of clear and unmistakable error requiring action by VA; however, because the RO has not adjudicated, and the Veteran has not yet appealed, such a claim, any assertion of clear and unmistakable error is not currently before the Board. The United States Court of Appeals for Veterans Claims (Court) has held that once a decision assigning, or affirming the assignment of, an effective date has become final, as is the case here, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO or Board decision. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The Court reasoned that to allow such claims would vitiate the rule of finality. Id. Here, the Veteran's claim for entitlement to an earlier effective date was filed after a final RO decision which the Veteran did not appeal within one year. The Court made it clear in Rudd that under these circumstances dismissal is required due to the lack of a proper claim. See Rudd, 20 Vet. App. at 300. Based on the procedural history of this case, the Board has no alternative but to dismiss the appeal as to this issue without prejudice to the Veteran's pending CUE motion. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). In light of the above, the Veteran's freestanding claim for an earlier effective date for the grant of service connection for PTSD seeks an outcome not provided by law. When the law is dispositive against a claim, as here, the claim must be denied or the appeal terminated. Id. ORDER The Veteran having submitted new and material evidence, his service connection claim for Whipple's disease is reopened. The Veteran's claim for an effective date prior to March 7, 2002, for the award of service connection for PTSD is dismissed. REMAND The Veteran's service connection claim for Whipple's disease having been reopened, it may be considered on the merits. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). Service connection may be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995). The Board observes that 38 C.F.R. § 3.310, the regulation concerning secondary service connection, was amended effective October 10, 2006. See 71 FR 52744-47, (Sept. 7, 2006). The intent was to conform the regulation to Allen v. Brown, a U.S. Court of Appeals for Veterans Claims decision that clarified the circumstances under which a Veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. See 38 C.F.R. § 3.310 (2009). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the Veteran's appeal was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). The Board next observes that the Veteran served aboard the U.S.S. Independence during World War II. He was aboard this vessel in November 1943 when it was struck by a torpedo and was thus exposed to combat conditions. If the evidence establishes that a veteran engaged in combat with the enemy, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred therein, in the absence of clear and convincing evidence to the contrary, and provided that the claimed disease or injury is consistent with the circumstances, conditions, or hardships of the veteran's service, satisfactory lay or other evidence of service incurrence or aggravation of such disease or injury. 38 U.S.C.A. § 1154(b) (West 2002). In the present case, the Veteran was afforded a March 2009 VA examination to address the etiology of his claimed Whipple's disease. The examiner noted the Veteran's reported history of Whipple's disease, but stated this disability "is not noted to cause [gastroesophageal reflux disease] symptoms or any upper [gastrointestinal] symptoms." The examiner did not further discuss the Veteran's Whipple's disease or offer an opinion whether such a disability was related to military service, or was due to or aggravated by a service-connected disability such as PTSD. Nevertheless, the Board finds sufficient evidence has been presented to compel VA to obtain such an opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81( 2006). VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). VA's duty to assist includes providing a medical examination and/or obtaining a medical opinion when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d). Thus, this issue must be remanded for further development. The Veteran also seeks service connection for a disability of the eyes, claimed as conjunctivitis, keratitis, hordeolum, glaucoma, pseudophakia, cornea scars, and/or dry eyes, on a direct basis and as secondary to Whipple's disease. A medical examination was afforded the Veteran in April 2009, at which time a physician confirmed findings of glaucoma bilaterally, pseudophakia, corneal opacity, etiology unknown, and status post-endothelial graft, right eye. In the examiner's opinion, these disabilities were unrelated to service, as he could find "no service-related events", to include any flash injuries, to have caused them. However, review of the Veteran's assertions reveals claims that he incurred flash injuries to his eyes during the fires aboard the U.S.S. Independence when it was struck by a torpedo in 1943. As noted above, the torpedo event is confirmed within the historical record, as is the Veteran's presence about the vessel at that time, and as the claim of a bilateral eye injury resulting therein is consistent with the circumstances, conditions, or hardships of the Veteran's service, such an injury is presumed. 38 U.S.C.A. § 1154(b) (West 2002). Thus, a new medical opinion rendered in light of this presumption is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Forward the Veteran's claims files to an appropriate medical expert in internal medicine or gastrointestinal disabilities for the purpose of responding to the questions below regarding the etiology of the claimed Whipple's disease. The Veteran need not be scheduled for examination unless such an examination is determined necessary by the examiner. All pertinent symptomatology and findings should be reported in detail. After fully reviewing the Veteran's claims files, the examiner should respond to the following: (i) Provide an opinion as to whether it is at least as likely as not that Whipple's disease is causally related to military service. (ii) If Whipple's disease did not have its onset during service or is not otherwise causally related to service [that is, if the answer to question (i) is negative], the examiner is asked to state whether it is as likely as not that this disability is proximately due to or the result of the Veteran's service- connected PTSD and/or gastroesophageal reflux disease. (iii) If the examiner finds that Whipple's disease is not related to service in some way and it is not proximately due to or the result of a service-connected disability [that is, if the answer to questions (i) and (ii) is negative], the examiner is asked to provide an opinion as to whether the Veteran's Whipple's disease has been aggravated by a service-connected disability, that is, whether a service- connected disability caused a permanent and greater degree of impairment (aggravation) of Whipple's disease. A complete rationale for all conclusions reached must be stated for the record. 2. Forward the Veteran's claims file to an appropriate medical expert for eye disorders for the purpose of responding to the questions below regarding the etiology of any current eye disorder. The Veteran need not be scheduled for examination unless such an examination is determined necessary by the examiner. All pertinent symptomatology and findings should be reported in detail. After fully reviewing the Veteran's claims files, the examiner should respond to the following: (i) Provide an opinion as to whether it is as likely as not that any current eye disability is causally related to military service. In so doing, the examiner is accept as factual the Veteran's assertions of flash injuries to his eyes as a result of fires and explosions experienced during military service. (ii) If any current eye did not have its onset during service or is not otherwise causally related to service [that is, if the answer to question (i) is negative] , the examiner is asked to state whether it is as likely as not that this disability is proximately due to or the result of the Veteran's claimed Whipple's disease. (iii) If the examiner finds that any current eye disorder is not related to military service in some way and it is not proximately due to or the result of a service-connected disability [that is, if the answer to questions (i) and (ii) is negative], the examiner is asked to provide an opinion as to whether any current eye disorder has been aggravated by Whipple's disease; that is, whether Whipple's disease caused a permanent and greater degree of impairment (aggravation) of any current eye disorder. A complete rationale for all conclusions reached must be stated for the record. 3. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Board offers no opinion regarding the ultimate outcome of this appeal. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs