Citation Nr: 1122906 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 07-36 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to service connection for a lung disorder, to include as due to exposure to herbicides. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a skin disorder, to include as due to exposure to herbicides. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Army from February 1968 to February 1970, including service in Vietnam; he was awarded the Combat Infantryman Badge (CIB), the Air Medal and the Bronze Star Medal with 'V' device. He subsequently was a member of the Army Reserve for many years until he was discharged in May 1986; however, no periods of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) have been verified for the appellant. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO) which, in part, denied service connection for a spot on the lung, a stomach ulcer, and a herniated nucleus pulposus. The RO also denied the reopening of the appellant's claim of entitlement to service connection for a skin condition of the feet (tinea pedis). Service connection for a lumbar spine disorder and a skin disorder of the feet (tinea pedis) was originally denied in a January 1987 rating decision. The appellant was notified of those two denials in notice letter of January 1987, and he did not appeal. The January 1987 rating decision, therefore, represents the last final action on the merits of the service connection claims for a back disorder and a skin disorder. Glynn v. Brown, 6 Vet. App. 523 (1994). The January 1987 rating decision also represents the last final decision on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Thus, the Board must consider whether any of the evidence submitted since the January 1987 rating decision constitutes new and material evidence and, therefore, the issues on appeal are as listed on the first page, above. The Board notes that the RO did not treat the current claim for service connection for a lumbar spine disorder as one which had been previously denied. Nonetheless, a comprehensive discussion of the question of new and material evidence must be undertaken in order to put the low back issue in the proper legal posture. See Barnett v. Brown, 8 Vet. App. 1 (1995). As the RO did not expressly analyze the lumbar spine service connection issue in terms of the need for new and material evidence, the Board is required to initially determine whether the claimant would be prejudiced by the Board's considering sub-issues and arguments or applying statutes, regulations, or judicial analyses which may have not been considered by the RO. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that the appellant would be prejudiced by the Board's consideration of such sub-issues and additional regulations, as discussed in the REMAND section below. The issue of entitlement to service connection for ischemic heart disease (IHD), to include as due to exposure to herbicides, been raised by the record, but that issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over that matter, and it is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND A determination has been made that additional development is necessary with respect to the issues on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below. In an April 2006 notice letter, the RO informed that the appellant that his claim of entitlement to service connection for a herniated nucleus pulposus had denied because the condition was not related to his service. The RO did not advise that the appellant's lumbar spine claim had previously been denied for the same reason in January 1987. There was no mention of the statutory or regulatory requirements for new and material evidence in the notice letter, or in the October 2007 Statement of the Case (SOC). In addition, the appellant's claim of entitlement to service connection for a lumbar spine disorder was not analyzed by the RO on a new and material evidence basis in the March 2006 rating decision. Thus, it is fairly clear from the evidence of record that neither the appellant nor his representative were notified of the need for new and material evidence, and is it clear that they probably were not aware of the possibility that the issue of new and material evidence would be considered by the Board. The Board, however, is required to consider whether the appellant has submitted new and material evidence warranting reopening of his lumbar spine service connection claim before the Board may consider the claim on the merits. 38 U.S.C.A. §§ 5108, 7104(b); Barnett v. Brown, 8 Vet. App. 1 (1995). Furthermore, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held, in part, that VA's duty to notify a claimant seeking to reopen a claim included advising the claimant of the evidence and information needed to reopen the claim and notifying the claimant of the evidence and information needed to establish entitlement to the underlying claim for the benefit sought by the claimant. The Court further held that VA must, in the context of a claim to reopen, look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. On remand, the RO must provide the appellant with notice as to what is necessary to substantiate the previously unestablished element or elements required to change the previous denial of service connection for his lumbar spine disorder. A March 2007 deferred rating action indicated that the appellant claimed aggravation of his low back condition that was due to his activities in the Army Reserve. The deferred rating action also noted that the appellant's Reserve records from July 1974 to September 1983 were in the claims file, but that the records from September 1983 through 1986 were not in evidence. In addition, it was noted that verification of the appellant's periods of ACDUTRA and INACDUTRA were needed. A subsequent deferred rating (dated in May 2007) states that the PIES response did not provide the evidence required. It does not appear that any other development action was undertaken before the June 2007 memorandum regarding unavailability of records was issued. The Board notes that the appellant was convicted of a federal felony offense in August 1992, and sentenced to 25 years in prison. It appears that he was released from federal prison in January 2011. While the appellant has submitted some copies of his prison medical treatment records, it does not appear that the RO has attempted to get the appellant's treatment records from the Federal Bureau of Prisons (BOP). VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, in order to fulfill the duty to assist, all of the appellant's outstanding Army Reserve service medical and personnel records and BOP records should be obtained and associated with the claims file. The evidence of record has raised the issues of direct incurrence and presumptive incurrence of a lung disorder, a stomach disorder, a back disorder, and a skin disorder. The evidence of record has also raised the issue of the aggravation of a pre-existing low back disorder. Service connection may be granted for a disability or injury that was incurred in or aggravated by a claimant's active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military service includes active duty (AD), any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (c), (d). ACDUTRA includes full-time duty in the Armed Forces performed by Army Reserve members for training purposes under 38 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). Presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing AD or ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA, but the appellant is not entitled to the application of the presumption of soundness or the presumption of aggravation except for his AD. 38 U.S.C.A. §§ 101(24), 106, 1110. In this case, the RO has not verified the appellant's periods of ACDUTRA and INACDUTRA between his separation from active duty in February 1970, and his discharge from the Army Reserve in May 1986. On remand, this verification must be accomplished. The Board notes that the appellant has not been afforded any medical examination of any kind in this case. It appears that the RO did attempt to schedule some examinations for other issues, but ran into difficulties because the appellant was incarcerated. However, it also appears that he was released from prison in January 2011. The duty to assist also requires medical examination when such examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Readjudication on remand should reflect consideration of all applicable theories. These considerations require the gathering of military records and medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. Review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A and implementing regulations found at 38 C.F.R. § 3.159 is completed, including compliance with the Kent ruling. Advise the appellant of the evidence and information that is necessary to reopen the lumbar spine service connection claim on appeal, as well as the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefits sought by the appellant. See also 38 C.F.R. § 3.156. In particular, advise the appellant of what evidence would substantiate his petition to reopen his claim of entitlement to service connection for a lumbar spine disorder. An appropriate period of time should be allowed for the appellant to respond and/or submit additional evidence. 2. Verify the dates of the Veteran's active duty for training and inactive duty training from February 1970 to May 1986, and take all appropriate steps to secure the outstanding Army Reserve medical records or alternative records, as well as the outstanding Army Reserve personnel records or alternative records, from 1970 to 1986. a. Request, from the National Personnel Records Center (NPRC) or other sources such as the U.S. Army Human Resources Command (AHRC-PAV-V) or the appellant's Army Reserve unit, the rest of the Veteran's Army Reserve service medical and personnel records. If any location contacted suggests other sources, those sources should be encompassed by the search. b. Ask the Veteran to submit all Army and Army Reserve medical and personnel records he has in his possession. c. Any evidence obtained should be associated with the claims file. If there are no records, documentation used in making that determination be set forth in the claims file. 3. Contact the appellant to obtain the names and addresses of all VA, private, or other government health care providers and treatment centers where he has been treated for any claimed condition since 1970. After securing the necessary release(s), obtain those records that have not been previously secured. In particular, obtain the records from the Veteran's medical treatment while he was incarcerated in a federal prison from 1992 to 2011. 4. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results and be given opportunity to secure the records. 5 Thereafter, determine whether the additional evidence submitted is new and material as to the issues of entitlement to service connection for the appellant's low back disorder and skin disorder. In determining whether new and material evidence has been submitted, determine whether the evidence secured or presented since the last final decision is new and material when viewed in the context of all the evidence, both old and new, presuming the credibility of the new evidence. See Evans v. Brown, 9 Vet. App. 273 (1996); Justus v. Principi, 3 Vet. App. 510 (1992). 6. If new and material evidence has been submitted as to the skin disorder claim and/or the low back claim, the AMC/RO should reopen said claim and re-adjudicate it. The re-adjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate statutes and regulations and legal theories, including direct, presumptive, aggravation, and secondary theories of service connection. 7. Complete any additional notification and/or development action deemed warranted by the record as to the remaining claims on appeal. Undertake any medical development required to determine whether the appellant's currently claimed lung disorder and/or stomach disorder is/are etiologically related to any incident of service, or whether the claimed pathology more likely due to some other cause or causes. If examination is needed before the determination can be accomplished, schedule the Veteran for such examination. 8. After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and readjudicate each of the service connection issues remaining on appeal. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, direct service connection, presumptive service connection, secondary service connection and aggravation. 9. If any benefit sought on appeal remains denied, provide the Veteran and his representative a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on each claim, to include a summary of the evidence and applicable law and regulations considered pertinent to each issue remaining on appeal. Appropriate time should be allowed for response. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. The appellant's 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. 2010). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of th1e Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).