Citation Nr: 1012145 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 06-05 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a thoracic spine disorder. 3. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for bilateral hearing loss. 4. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a left leg disorder. 5. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a left ankle disorder. 6. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a left knee disorder. 7. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a head injury. 8. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a visual disorder/left eye injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The appellant served on active duty for training from March 30, 1984, to April 21, 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied, on the merits, service connection for a mood disorder; and which denied service connection for left eye deviation, residuals of a head injury, bilateral hearing loss, left lower extremity varicosities, left knee injury with arthritis, a left ankle injury, and thoracic back pain on the grounds that new and material evidence had not been presented. The issue of compensation for trauma to a tooth has been raised by 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. The issues of entitlement to service connection for a head injury, a psychiatric disorder, and a left eye injury are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. In a June 1985 rating decision, the RO denied, in pertinent part, service connection for left knee injury/arthritis; thoracic back pain; left eye deviation; high frequency hearing loss; varicosities in the lower extremities; and head injury. In a November 1985 rating decision, the RO denied service connection for a left ankle disorder. The appellant appealed the entire June 1985 decision, but subsequently withdrew his appeals for service connection for thoracic back pain, high frequency hearing loss, and varicosities in the lower extremities before the case was certified to the Board. 2. In an April 1986 decision, the Board denied the appellant's remaining appeals for service connection for left knee injury, head injury, and left eye injury. 3. The evidence presented since the June and November 1985 rating decisions does not raise a reasonable possibility of substantiating the claims of service connection for thoracic back pain; high frequency hearing loss; a left leg disorder; or a left ankle disorder. 4. The evidence presented since the Board's decision in April 1986 relates to an unestablished fact necessary to substantiate the appellant's claims for service connection for head injury and left eye injury, and raises a reasonable possibility of substantiating those claims. 5. The evidence presented since the Board's decision in April 1986 does not raise a reasonable possibility of substantiating the claim of service connection for left knee injury/arthritis. CONCLUSIONS OF LAW 1. That part of the June 1985 rating decision by the RO denying service connection for thoracic back pain, high frequency hearing loss, and left leg disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2009). 2. The November 1985 rating decision by the RO denying service connection for a left ankle disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2009). 3. The additional evidence presented since the decision by the Board in April 1986, denying service connection for head injury, is new and material, and the claim of service connection is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 4. The additional evidence presented since the decision by the Board in April 1986, denying service connection for left eye injury, is new and material, and the claim of service connection is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 5. New and material evidence has not been presented to reopen the previously denied claim of service connection for left knee injury/arthritis. 38 U.S.C.A. § 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159 (2009). 6. New and material evidence has not been presented to reopen the previously denied claim of service connection for thoracic back pain. 38 U.S.C.A. § 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159 (2009). 7. New and material evidence has not been presented to reopen the previously denied claim of service connection for high frequency hearing loss. 38 U.S.C.A. § 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159 (2009). 8. New and material evidence has not been presented to reopen the previously denied claim of service connection for a left leg disorder. 38 U.S.C.A. § 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159 (2009). 9. New and material evidence has not been presented to reopen the previously denied claim of service connection for a left ankle disorder. 38 U.S.C.A. § 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) status; 2) existence of a disability; (3) a connection between service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a new and material evidence claim, the notice must include notice of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided pre-adjudication VCAA notice by way of a letter dated in October 2004. The appellant was notified of the type of evidence needed to reopen the previously denied claims of service connection for left knee injury/arthritis; thoracic back pain, left eye deviation; high frequency hearing loss; varicosities in the lower extremities; head injury; and a left ankle disorder. The appellant was notified that new and material was needed to reopen the claims; that is, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and that pertained to the reason that the claims were previously denied. The appellant was also notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency such as private medical records. He was further notified that upon his authorization VA would obtain any non-federal records on his behalf. A letter dated in March 2006 included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Kent v. Nicholson, 20 Vet. App. 1 (2006) (elements of a new and material evidence claim). As the 2006 letter was furnished after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated, as evidenced by supplemental statement of the case dated in January and March 2008, and January 2009. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records (STRs), VA treatment records, and private treatment records. In addition, the RO has made multiple attempts to get Social Security disability records, but received a negative response. As the record indicates that any such records are not obtainable, the Board finds that further efforts to obtain them would be futile. As there is no indication of the existence of additional evidence to substantiate the appellant's claims for service connection for bilateral hearing loss, left lower extremity varicosities, a left knee injury with arthritis, a left ankle injury, and thoracic back pain, no further assistance to the appellant in developing the facts pertinent to the claim is required to comply with the duty to assist. Factual Background In a rating decision dated in June 1985 the RO denied, in pertinent part, service connection for left knee injury/arthritis; thoracic back pain, left eye deviation; high frequency hearing loss; varicosities in the lower extremities; and head injury, which the appellant appealed. During a local RO hearing in November 1985 the appellant raised a new claim of service connection for left ankle disorder, and withdrew his appeals for service connection for thoracic back pain (which was denied on the grounds that in-service complaints were acute); service connection for high frequency hearing loss (which was denied on the grounds that it pre-existed the appellant's entry on active duty for training); and service connection for varicosities in the lower extremities (which was denied on the grounds that STRs contained no evidence of a diagnosis of leg disability). In a rating decision dated in November 1985 the RO reconsidered and confirmed its prior denial of service connection for left knee injury, head injury, and left eye injury. The RO also denied, on the merits, service connection for a left ankle disorder on the grounds that STRs were negative for a left ankle injury. In April 1986 the Board denied the appellant's appeals for service connection for residuals of a left knee injury; service connection for left eye deviation; and service connection for residuals of a head injury on the grounds that there was no objective record of any left knee, left eye, or head injury in STRs. In November 1990 the appellant submitted copies of STRs dated in April 1984. These documents were not previously of record. In a letter to the appellant dated in November 1990 the RO stated that the newly acquired evidence did not warrant any change in the previous determination concerning service connection for head injury, leg injury, and back injury. In September 2004 the appellant submitted a new claim for service connection for residuals of an injury to his left leg, knee, and ankle; back pain; visual difficulty/lateral deviation of the left eye; psychological problems; head injury residuals; and impaired hearing in the left ear. In a rating decision dated in January 2005 the RO denied, on the merits, service connection for mood disorder; and denied service connection for left eye deviation, residuals of a head injury, bilateral hearing loss, left lower extremity varicosities, and service connection for left knee injury with arthritis, a left ankle injury, and thoracic back pain on the grounds of no new and material evidence. The appellant has appealed. Legal 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 thus 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; Evans v. Brown, 9 Vet. App. 273 (1996). As the application to reopen was received after August 2001, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies. 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. § 3.159. 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). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Analysis Regardless of what the RO did, the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim. The Board will therefore determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001). New and material evidence, back pain The claim of service connection for back pain was denied on the grounds that in-service complaints were acute. The additional evidence since the rating decision by the RO in June 1985 includes the appellant's lay statements, which are cumulative and redundant of that on record at the time of the prior final decision on the merits. The additional evidence also consists of VA and private treatment records. Although new, they are not material, since they do not show repeated complaints of back pain during service. They consequently does not relate to an unestablished fact necessary to substantiate the claim and thus do not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. As the additional evidence is not new and material, the claim of service connection for back pain is not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). New and material evidence, high frequency hearing loss The claim of service connection for high frequency hearing loss was denied on the grounds that it pre-existed the appellant's entry on active duty for training. The additional evidence since the rating decision by the RO in June 1985 includes the appellant's lay statements, which are cumulative and redundant of that on record at the time of the prior final decision on the merits. The additional evidence also consists of VA and private treatment records. Although new, it is not material, since there is no indication in this new evidence that the appellant's high frequency hearing loss began during service, or that it was aggravated during service. It consequently does not relate to an unestablished fact necessary to substantiate the claim. It thus does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. As the additional evidence is not new and material, the claim of service connection for high frequency hearing loss is not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). New and material evidence, left leg disorder The claim of service connection for lower extremity varicosities was denied on the grounds that STRs contained no evidence of a diagnosis of leg disability. The Board notes that a change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service- connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.13, 4.125 (2008); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In this case, the appellant's current claim for "injury to left leg" is based on the same factual basis as the time the case was last decided on the merits, so new and material evidence is necessary to reopen the claim. Id. The additional evidence since the rating decision by the RO in June 1985 includes the appellant's lay statements, which are cumulative and redundant of that on record at the time of the prior final decision on the merits. The additional evidence also consists of VA and private treatment records, which show treatment for left leg complaints. Although new, it is not material, since it does not show complaints of or treatment for a left leg disorder during service, so it does not relate to an unestablished fact necessary to substantiate the claim. It thus does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. As the additional evidence is not new and material, the claim of service connection for a claimed left leg disorder is not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). New and material evidence, left ankle injury The claim of service connection for a left ankle disorder was denied on the grounds that STRs were negative for a left ankle injury. The additional evidence since the rating decision by the RO in November 1985 includes the appellant's lay statements, which are cumulative and redundant of that on record at the time of the prior final decision on the merits. The additional evidence also consists of VA and private treatment records, which show treatment for a left ankle disorder. Although new, it is not material, since it does not show complaints of or treatment for a left ankle disorder during service. It consequently does not relate to an unestablished fact necessary to substantiate the claim. It thus does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. As the additional evidence is not new and material, the claim of service connection for a claimed left ankle injury is not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). New and material evidence, left knee injury The claim of service connection for residuals of a left knee injury was denied by the Board in 1986 on the grounds that there was no objective record of a left knee injury in STRs. The additional evidence since the Board's April 1986 decision includes the appellant's lay statements, which are cumulative and redundant of that on record at the time of the prior final decision on the merits. The additional evidence also consists of VA and private treatment records, which inform of a left knee disorder. Although new, it is not material, since it does not show complaints of or treatment for a left knee injury during service, so it does not relate to an unestablished fact necessary to substantiate the claim. It thus does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. As the additional evidence is not new and material, the claim of service connection for a claimed left knee injury is not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). New and material evidence, left eye and head injuries The claim of service connection for left eye deviation and residuals of a head injury was denied by the Board in 1986 on the grounds that there was no objective record of a head injury in STRs. The additional evidence since the Board's April 1986 decision includes the appellant's detailed account of a head injury during service. In a statement dated in September 2004 the appellant averred as follows: While in basic training I was pushed off my bunk while sleeping, landing on the left side of my head, which immediately began to swell. . . . because of my head injury I have become retarded/slow . . . in thought, speech, and motor skills . . . I hear things inside my head, can't remember things very well. . . . the impact from my head hitting the floor deviated my left eye causing a vision difficulty from it. Now my vision is blurred very bad out of my left eye. The appellant added that his assailant was court martialed. The evidence also includes private treatment records that inform of treatment since September 1984, for the residuals of head trauma/brain injury. Diagnoses include "organic brain syndrome;" "psychotic disorder due to head trauma;" "mood disorder due to head trauma;" and "cognitive disorder, nos." This evidence, when considered with previous evidence of record (e.g., private medical records dated in 1974 and 1975 and STRs dated April 6, 1984), is new and material, as it relates to an unestablished fact necessary to substantiate the claim, namely, a head injury in-service; residual damage; and possible aggravation of a pre-service head/brain injury. As the evidence raises a reasonable possibility of substantiating the claim, the claims for service connection for a head injury and a left eye injury are reopened. ORDER As new and material evidence has not been presented, the claim of service connection for back pain is not reopened, and the appeal is denied. As new and material evidence has not been presented, the claim of service connection for high frequency hearing loss is not reopened, and the appeal is denied. As new and material evidence has not been presented, the claim of service connection for a left leg disorder is not reopened, and the appeal is denied. As new and material evidence has not been presented, the claim of service connection for a left ankle disorder is not reopened, and the appeal is denied. As new and material evidence has not been presented, the claim of service connection for left knee injury/arthritis is not reopened, and the appeal is denied. As new and material evidence has been presented, the claim of service connection for head injury is reopened, and to this extent only the appeal is granted. As new and material evidence has been presented, the claim of service connection for left eye injury is reopened, and to this extent only the appeal is granted. REMAND Before a decision on the issues of service connection for a head injury, a psychiatric disorder, and a left eye injury can be made, further development, as described below, is warranted. The appellant maintains that he was assaulted while asleep on his second night of basic training. He specifically states that he was rolled off the top bunk of a bed, and says that he landed on his head and left side. He reports that he was hospitalized at Ireland Army Hospital. He also avers that his assailants were court martialed. STRs dated April 6, 1984, inform that the appellant was indeed recommended to "to be taken to Ireland Hospital & carefully examined for permanent injury to head and left knee as result of REC STA incid." The military provider further wrote as follows: Also recommend that the [servicemen] who caused this [serviceman] harm in the REC STA be sought out and punished as violaters of the UCMJ. Although medical records from Ireland Army Hospital were apparently requested in 1985, a responsive document is not of record. Related military justice records have also not been requested. Remand for additional development is accordingly warranted. 38 C.F.R. § 3.159 (c). Accordingly, the case is REMANDED for the following action: 1. Request a copy of all medical records (including in-patient hospital records) that pertain to the appellant from Ireland Army Community Hospital and any other hospital located at Fort Knox, Kentucky, for the time period March 30, 1984, through April 21, 1984. These records should be associated with the claims file. If no records are found the claims file should be documented accordingly. 2. Request unit history reports and daily journals for the 1st Battalion, Army Training Brigade, Company B, 2nd TRADOC-TC, at Fort Knox, Kentucky, for the time period March 30, 1984, to April 21, 1984. These records should be associated with the claims file. 3. Request a copy of all UCMJ records, including court martial records, related to an assault on the appellant between the timeframe March 30, 1984, to April 6, 1984. These records should be associated with the claims file. If no records are found the claims file should be documented accordingly. 4. After the completion of all of the above, if additional evidence is received, determine whether further development under the duty to assist to include whether a VA medical examination and VA medical opinion is needed to decide claim(s). 5. After the requested development is completed, adjudicate the claims for service connection. If the decision remains adverse to the appellant, then provide him and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2009). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs