Citation Nr: 1107167 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 06-24 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating for duodenal ulcer with truncal vagotomy and partial gastrectomy, currently evaluated as 40 percent disabling. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for schizophrenia. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for pulmonary tuberculosis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from August 1979 to September 1983. These claims come before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia. Unfortunately, still further development of the evidence is required before the Board can adjudicate the Veteran's claim of entitlement to an increased disability rating for his duodenal ulcer with truncal vagotomy and partial gastrectomy. So, regrettably, this claim is being remanded to the RO via the Appeals Management Center (AMC). VA will notify him if further action is required on his part. FINDINGS OF FACT 1. On October 29, 2010, prior to the promulgation of a decision in the appeal of the Veteran's petition to reopen a previously denied claim of entitlement to service connection for pulmonary tuberculosis, the Board received notification from the appellant that a withdrawal of this appeal is requested. 2. In an unappealed May 1989 rating decision, the RO denied the Veteran's claim of entitlement to service connection for schizophrenia; the Veteran's most recent petition to reopen his claim was denied in an August 2002 rating decision. 3 Evidence added to record since the RO's August 2002 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for schizophrenia and does not raise a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal of a claim of entitlement to service connection for pulmonary tuberculosis, by the appellant, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. The August 2002 rating decision that denied the Veteran's petition to reopen his previously denied claim of entitlement to service connection for schizophrenia is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 3 New and material evidence has not been received to reopen the claim for service connection for schizophrenia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Substantive Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the outset of his October 29, 2010, Board hearing, the appellant indicated that he wished to withdraw his appeal of the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection pulmonary tuberculosis. Hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and it is dismissed. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2010). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established significant new requirements with respect to the content of the VCAA notice for reopening claims. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. But see Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) ( "§ 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). It need not describe the VA's evaluation of the veteran's particular claim."). VA issued a VCAA notice letter, dated in August 2004, from the agency of original jurisdiction (AOJ) to the appellant. The letter explained the evidence necessary to substantiate the Veteran's petition to reopen, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The Board also finds that the VCAA notification letter is compliant with Kent as to the Veteran's petition to reopen. This letter specifically informed the Veteran as to what evidence would be necessary to substantiate the element or elements that were required to establish service connection that were found insufficient in the previous denial. The Veteran was told to submit evidence pertaining to the reason his claim of entitlement to service connection for schizophrenia was previously denied, and the letter notified the Veteran of the reason for the prior final denials (i.e., the elements of the service connection claim that was deficient). In addition, a May 2006 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that was the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. However, the notice elements required by Dingess/Hartman were provided to the appellant after the initial adjudication and the appellant's claim was readjudicated thereafter. As such, the appellant has not been prejudiced and there was no defect with respect to timing of the VCAA notice. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the Veteran's own statements in support of his claim, including a transcript of his testimony before Veterans Law Judge (VLJ) of the Board. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Service Connection - Generally A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a Veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." As relevant to this appeal, new evidence is existing evidence not previously submitted to agency decision-makers. Material evidence is existing evidence that, by itself or when considered with the previous evidence of record, relates to a fact, not previously established, which is 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2010). If all of these tests are satisfied, the claim must be reopened. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered. 38 C.F.R. § 3.156(c). Analysis The Veteran's claim of entitlement to service connection for schizophrenia was initially denied by the RO in a May 1989 rating decision. The Veteran's subsequent petitions to reopen his claim were denied in August 1994, June 1995, May 2000, March 2001 and August 2002. None of the rating decisions were appealed and, thus, they are final. See 38 U.S.C.A. § 7105. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board remains whether new and material evidence has been presented to reopen the claim. The initial, May 1989 rating decision denied the Veteran's claim of entitlement to service connection for schizophrenia on the basis that there was no evidence of schizophrenia during his military service or any evidence that his schizophrenia was related to his military service; the RO noted that the Veteran had been treated for schizophrenia in 1986, but that it was not associated with his service. The subsequent rating decisions denied his petitions to reopen as the Veteran did not provide competent medical evidence that his schizophrenia was incurred during his military service or any applicable presumptive period; the RO pointed out that the Veteran continued to submit evidence of post-service treatment for schizophrenia. As stated above, in order to reopen a claim, evidence received must be both new and material. Additional evidence received after the prior final denial was not of record at the time of the final RO decision. The Veteran's VA medical records, as well as his multiple statements, are not cumulative and redundant of the evidence in the claims file at the time of the last final rating decision. Thus, that evidence is considered "new." To be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claim. The basis for the RO's prior final denial was that there was no medical evidence of record demonstrating that the Veteran's schizophrenia was incurred or aggravated during his military service. The evidence of record, submitted by the Veteran during the years since the RO's last final rating decision, refers primarily to the evaluation and treatment, i.e., the current diagnosis and severity, of his schizophrenia. See Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing the veteran's current condition are immaterial to the issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence). The Board is mindful of the Veteran's assertions that he is entitled to service connection because he has schizophrenia and has been treated since his service for this disability. However, such statements must be considered in the context of the record as a whole to determine whether it raises a reasonable possibility of substantiating the claim. In this regard, there is no evidence that the Veteran's schizophrenia was incurred or aggravated during his military service, and the Veteran has not provided any objective, medical evidence indicating that his schizophrenia began during or as a result of his military service; the record remains devoid of any evidence linking the etiology of this disability to his military service See Moray v. Brown, 5 Vet. App. 211, 214 (1993) (there must be medical evidence linking a current disability, even assuming the veteran has one, to his service in the military). See also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). Additionally, the Board acknowledges that the Veteran has repeatedly asserted that his schizophrenia began during his service, or is related to events during his service, including treatment for his service-connected duodenal ulcer. However, despite the Veteran's complaints related to his schizophrenia, the Board points out that there is no objective medical evidence confirming that the Veteran's schizophrenia had its onset during his military service or one year thereafter. Furthermore, although the Veteran's medical records show evidence of treatment for his schizophrenia, the evidence does not demonstrate that the Veteran's schizophrenia began as a result of treatment for his service-connected duodenal ulcer. As such, the additional evidence considered in conjunction with the record as a whole does not raise a reasonable possibility of substantiating the claim. In short, these medical records, as well as the Veteran's statements, do not demonstrate a causal relationship between his service in the military and his schizophrenia, nor do these records otherwise verify the circumstances of his service. See Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6, 11 (1996). Merely reiterating previously made arguments, without independent verification of these assertions, is insufficient grounds to reopen the claim. Cf. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312 (1992). In conclusion, new and material evidence to reopen the Veteran's previously denied claim for service connection for schizophrenia has not been received subsequent to the last final RO decision. In the absence of new and material evidence, the benefit-of-the- doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As such, the Veteran's claim is not reopened. ORDER The appeal of the issue whether new and material evidence has been submitted sufficient to reopen a claim entitlement to service connection for pulmonary tuberculosis is dismissed. The petition to reopen the claim for service connection for schizophrenia is denied. REMAND VA must make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Such assistance shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). With regard to the Veteran's claim of entitlement to an increased disability evaluation for a duodenal ulcer, the Board observes that the Veteran testified in October 2010 that he received treatment related to his service-connected duodenal ulcer with truncal vagotomy and partial gastrectomy at the Atlanta, Georgia VA Medical Center (VAMC). The Board acknowledges that the RO obtained medical records from the Atlanta VAMC, dated through March 2005, but points out that treatment records since that time, as reported by the Veteran, have not been associated with his claims file. These records may contain important medical evidence or confirmation of the Veteran's assertions. VA must make a "reasonable effort" to obtain these and other relevant records. If the RO did make a reasonable effort to obtain all of the Veteran's VA medical treatment records, but they were unavailable, there is no specific indication in the file that these records do not exist or that further attempts to obtain them would be futile. See 38 U.S.C.A. § 5103A(b) (West 2002). As VA has a duty to request all available and relevant records from Federal agencies, including VA medical records, another search must be made for any additional VA medical records that might be available for consideration in this appeal. See 38 C.F.R. § 3.159(c)(2), (c)(3) (2010). See also Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, the Veteran and his service representative contend that his service-connected duodenal ulcer with truncal vagotomy and partial gastrectomy is worse than currently evaluated. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), and Allday v. Brown, 7 Vet. App. 517, 526 (1995). In this regard, it is noted that the Court in Green stated that the fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board acknowledges that the Veteran was most recently afforded a VA examination in September 2004, and that a copy of the examination report is associated with his claims file. Nevertheless, the Veteran and his representative indicate that his duodenal ulcer with truncal vagotomy and partial gastrectomy has continued to worsen since the previous evaluation. Given the length of time that has elapsed since the Veteran's most recent VA examination, the Board finds that the Veteran should be scheduled for an updated VA examination which address the current nature and severity of his service-connected duodenal ulcer with truncal vagotomy and partial gastrectomy, in order to effectively evaluate the Veteran's service-connected disability. More recent objective characterizations of this condition and its associated symptomatology are required. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (finding that, where the Veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern). Therefore, additional clinical assessment and medical opinion is necessary to adequately address the Veteran's claim of entitlement to an increased disability evaluation. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Accordingly, the case is REMANDED for the following action: 1. Obtain complete records of the Veteran's treatment at the Atlanta VA Medical Center, for the period from March 2005 to the present, including all hospitalization reports. If these records are unavailable, simply do not exist, or further attempts to obtain them would be futile, document this in the claims file. See 38 U.S.C.A. § 5103A(b). 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service- connected duodenal ulcer with truncal vagotomy and partial gastrectomy. Conduct all testing and evaluation indicated and review the results of any testing prior to completion of the examination report. The examiner should also comment on the Veteran's current level of social and occupational impairment due to his service- connected duodenal ulcer with truncal vagotomy and partial gastrectomy. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. If no opinion can be rendered, an explanation should be set forth. The claims file should be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand. The examiner must indicate in the examination report whether or not review of the claims folder was made. Please also discuss the rationale of all opinions provided. 3. Following completion of the above, the RO should readjudicate the issue of entitlement to an increased disability rating for duodenal ulcer with truncal vagotomy and partial gastrectomy. Consideration must be given to all additional evidence received since issuance of the most recent statement of the case as to the matter. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The purpose of this remand is to further develop the record and afford due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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. 2010). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs