Citation Nr: 1126301 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 09-19 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left forearm and wrist disorder. 2. Entitlement to service connection for a left forearm and wrist disorder. 3. Entitlement to basic eligibility for nonservice-connected pension benefits. ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to October 1970. These matters come before the Board of Veterans' Appeals (BVA or Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. The Board notes that following the December 2009 supplemental statement of the case (SSOC), the claims file contains statements, service treatment records, and several private treatment records pertaining to the Veteran's claim for service connection for a left forearm and wrist disorder. The Board notes that waiver of RO review has not been provided. Nevertheless, as the evidence is duplicative in nature, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. The issue of entitlement to service connection for a left forearm and wrist disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a June 1998 rating decision, the RO denied reopening the Veteran's claim of entitlement service connection for a left wrist disorder, based on the finding that the medical evidence did not demonstrate current treatment as well as denied the Veteran's claim of entitlement to service connection for left forearm disorder, based essentially on the finding that medical evidence did not demonstrate a current disability; the Veteran did not appeal the June 1998 rating decision within one year of being notified. 2. Evidence received since the June 1998 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a left forearm and wrist disorder. 3. The Veteran filed his claim for nonservice-connected pension benefits in April 2008; he has been imprisoned at a state penal institution since at least 1987. 4. The Veteran does not have a dependent spouse or any dependent children. CONCLUSIONS OF LAW 1. The June 1998 RO rating decision that denied service connection for a left forearm and wrist disorder is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2010). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left forearm and wrist disorder. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010). 3. The criteria for basic eligibility for monetary nonservice-connected pension benefits are not met at this time. 38 U.S.C.A. §§ 101, 106, 1502, 1505(a), 1521, 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.159 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). As the Board has reopened and remanded the Veteran's claim of entitlement to service connection for a left forearm and wrist disorder, no additional discussion of VA's duty to notify and assist is necessary with respect to that issue. As the resolution of the Veteran's appeal for entitlement to nonservice-connected pension benefits is dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits, no further development under the VCAA or previously existing law is warranted. Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); see also VAOPGCPREC 2-04; 69 Fed. Reg. 25180 (2004). In addition, as will be explained below, further development would unnecessarily impose additional burdens upon VA with no possibility of any benefit flowing to the Veteran. Accordingly, such development is not warranted. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the RO must presume the credibility of the evidence. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as evidence not previously submitted and "material" as evidence related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). In this regard, the Board notes that, in a recent case, the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Historically, the Veteran initially filed a claim of entitlement to service connection for his left arm in September 1974. In a January 1975 decision, the RO denied his claim because he failed to appear at an October 1974 VA examination. The Veteran did not appeal that decision within a year, and it became final. 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen in May 1976, indicating that he was not able to attend the VA examination because he was incarcerated. In a July 1976 rating decision, the RO denied his claim, characterizing it as one for an injury to the left wrist, essentially on the basis that there was no current treatment and that left wrist injury residuals had not been shown on service discharge examination. The Veteran filed a notice of disagreement, and a September 1977 statement of the case was issued. However, the Veteran never filed a substantive appeal. See 38 C.F.R. § 20.202 (2010). The Board has considered the case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) found 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. The Court in Percy also went on to determine that any issue concerning the timely filing of the substantive appeal in that particular case was waived by VA, due to the fact that VA seemed to have treated the Veteran's appeal as if it were timely perfected for more than five years before being raised by the Board in the first instance, including almost two years after a Board hearing was held on the claim. The facts of this case are clearly distinguished from the Court's holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), because in this appeal the Veteran was not mislead by actions on the part of VA into believing that he had perfected an appeal as to this issue, at that particular point in time. Moreover, the Veteran did not send any correspondence to the VA again until November 1993, when he provided information regarding an in-service accident which he believes caused his current disability. As such, the July 1976 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran's November 1993 claim was adjudicated by the RO in a January 1994 rating decision. The RO sent a letter to the Veteran indicating that he needed to submit new and material evidence to reopen his claim, within 60 days. He was informed that if the evidence was not received within one year, any benefits granted could not be paid prior to the date of receipt of claim. The Veteran submitted a February 1994 statement, but did not provide any new and material evidence to reopen his claim. He mainly reiterated that he had missed a VA examination because he had been incarcerated and that he felt he was entitled to a VA examination. The RO reconsidered his claim in an August 1994 rating decision, determining that it was not well grounded, as no evidence had been submitted. The Veteran attempted to file a notice of disagreement in August 1994. However, in an October 1994 letter, the RO informed the Veteran that his August 1994 correspondence was not being accepted as a notice of disagreement, as there appeared to be some confusion surrounding the issues he was claiming. The Veteran did not appeal this decision, and it became final. The Veteran filed a claim to reopen a left forearm disorder in April 1998. In a June 1998 rating decision, the RO adjudicated a left wrist disorder claim on a new and material basis, denying it essentially on the basis that the Veteran had not submitted any medical evidence showing treatment since discharge from service. His claim for a left forearm disorder was separately considered. The RO denied his claim essentially on the basis that the Veteran had not reported, nor submitted, any evidence of treatment. The Veteran did not appeal that decision within a year, and it became final. As such, the June 1998 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed claims of entitlement to service connection for a left forearm and wrist disorder in April 2008. This appeal arises from the RO's January 2009 rating decision that denied reopening the Veteran's claims on the basis that new and material evidence had not been demonstrated. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). The Board finds that new and material evidence has been submitted since the last final rating decision. The evidence of record at the time of the last final rating decision in June 1998 consisted of service treatment records and correspondence to the Veteran. The evidence added to the record since the last final rating decision includes various treatment records from the Arkansas Department of Corrections and statements of the Veteran. Significantly, the new evidence demonstrates current treatment for symptomatology associated with his left forearm/wrist. The Board finds that the evidence submitted since the June 1998 RO decision is new in that it was not associated with the claims folder prior to the June 1998 RO decision. It is material as it relates to an unestablished fact necessary to substantiate the claim (the existence of a present disability) and raises a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that the criteria for reopening the claim for entitlement to service connection for a left forearm and wrist disorder are met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Entitlement to Nonservice-Connected Pension Benefits The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521. In order to establish basic eligibility for VA disability pension benefits, it is required, in part, that the individual with respect to whom pension is claimed be a veteran who had active military, naval, or air service during a term of war. See 38 U.S.C.A. §§ 101(2), (24), 1521(a), (j); 38 C.F.R. §§ 3.1, 3.6. The term 'veteran' is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). 'Active military, naval, and air service' includes active duty. 'Active duty' is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). The qualifying periods of war include the Vietnam era. 38 U.S.C.A. § 101 (11); 38 C.F.R. § 3.3(a)(3). The Vietnam era is the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period; and in all other cases, the period beginning August 5, 1964, and ending May 7, 1975. 38 C.F.R. § 3.2(f). Significantly, the law provides that no pension under public or private laws administered by the Secretary shall be paid to or for an individual who has been imprisoned in a Federal, State, or local penal institution as a result of conviction of a felony or misdemeanor for any part of the period beginning 61 days after such individual's imprisonment begins and ending when such individual's imprisonment ends. 38 U.S.C.A. § 1505(a); 38 C.F.R. § 3.666; see also Lanham v. Brown, 4 Vet. App. 265 (1993). If any individual to or for whom pension is being paid under a public or private law administered by VA is imprisoned in a Federal, State or local penal institution as the result of conviction of a felony or misdemeanor, such pension payments will be discontinued effective on the 61st day of imprisonment following conviction. Payment may be made to the spouse, child, or children of a veteran disqualified under this section if that veteran continues to be eligible except for the provisions of this section. 38 C.F.R. § 3.666(a). The Veteran served during a period of war, but he has been imprisoned at a state penal institution since at least 1987 (and more than likely since 1973). Correspondence from the Veteran reflects that he continues to remain imprisoned at this time. The Veteran did not file his claim for nonservice-connected pension benefits until April 2008, clearly more than 61 days after his imprisonment. Therefore, he cannot receive payment for any nonservice-connected pension benefits. In his April 2008 VA Form 21-526 (Veteran's Application for Compensation or Pension), the Veteran reported that he is a surviving spouse and indicated that he did not have any dependent children. He has not alleged that he has since remarried or that he now has any dependent children. Hence, there is no dependent spouse or child who could receive any pension benefits that the claimant would be eligible to receive. From the foregoing, it is clear that even if the Board were to remand this issue to order the Veteran be seen for a pension examination, while the Veteran is incarcerated, absolutely no benefit whatsoever would flow to him. He cannot be paid nonservice-connected monetary pension benefits at this time. Without the possibility of any benefit flowing to the Veteran at this time the Board finds no basis to award entitlement. The application of the law to the facts is dispositive and the appeal must be denied because under the law there is no entitlement to the benefit sought. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). The Veteran does not meet the requirements for nonservice-connected pension, and the applicable law as implemented by the VA Secretary precludes the relief sought. 38 U.S.C.A. §§ 101, 106, 1502, 1505(a), 1521, 5103; 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.159. The Veteran is notified that should he be released from prison, he may again reapply for nonservice-connected pension benefits at that time. His eligibility for nonservice-connected pension benefits would be determined based on the evidence then available. ORDER New and material evidence to reopen a claim of entitlement to service connection for a left forearm and wrist disorder has been received, to this extent, the appeal is granted. Basic eligibility for nonservice-connected pension benefits is denied. REMAND The Board's review of the claims file reveals that further development on the matter of entitlement to service connection for left forearm and wrist disorder is warranted. As indicated previously, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to assist also includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) Service treatment records reflect that the Veteran was treated in November 1968 for a contusion of the left wrist, which had occurred four weeks prior. The Veteran reported residual pain and was given an ace bandage. In July 1970, the Veteran sought treatment for complaints of a sprained wrist. Approximately one week later, the Veteran once again sought treatment, reporting that he had injured his left wrist, two weeks prior. He reported slight pain and was again given an ace wrap. An October 1970 service treatment record reflects treatment for the left arm with complaints of left wrist pain. He reported that it had been recurrent since an injury two years prior and was given an ace bandage as well as aspirin. In a November 1993 statement, the Veteran reported that he had injured his left forearm in-service, while working as a mechanic in 1969. He stated that he was putting a fanbelt on a 2 1/2 ton truck and had just turned to pick up a wrench from his position of crouching on the front bumper. He stated that he had his left arm lying across the radiator when the wind blew the hood of the truck and it fell shut, smashing his left forearm. He reported that after six weeks of his arm hurting he had gone to sick call. He essentially argues that he has continued to suffer from left arm/wrist problems since service. Treatment records dated in 2008 from the Arkansas Department of Corrections detailed complaints of pain, nerve damage, and parathesias in the left forearm secondary to military injury in 1970. In a September 2009 statement, the Veteran essentially indicated that his left forearm had been "split lengthwise." In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the cumulative record discussed above, the AMC should arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his claimed left forearm and wrist disorder on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board is cognizant that the Veteran is currently incarcerated by the Arkansas Department of Corrections. Although VA's ability to provide assistance to incarcerated veterans is limited by the circumstances of the Veteran's incarceration, VA adjudicators must 'tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow [V]eterans.' Bolton v. Brown, 8 Vet. App. 185, 191 (1995), quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To this end, VA provides guidelines for the examination of incarcerated veterans. Specifically, the Agency of Original Jurisdiction or the local Veterans Health Administration (VHA) Medical Examination Coordinator is to confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. See VA ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part III.iv.3.A.11.d (2011). Accordingly, the case is REMANDED for the following actions: 1. Take all reasonable measures to schedule the Veteran for the examination requested below. If the Veteran remains incarcerated, confer with prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination or if an examination at the prison is feasible. See M21-1MR, Part III.iv.3.A.11.d. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. The AMC should determine which is the most feasible option to obtain the requested VA examination. 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed left forearm and wrist disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner is requested to review all pertinent records associated with the claims file, particularly service treatment records, and provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed left forearm and wrist disorder had its onset during the Veteran's active service or is otherwise causally related to his service. In doing so the examiner should discuss the in-service treatment and the Veteran's assertions of left forearm and wrist disorder difficulties since service. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims file. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. Thereafter, the AMC must review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the requested medical examination to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completion of the above and any additional development deemed necessary, readjudicate the issue on appeal, with consideration of all evidence obtained since the issuance of the supplemental statement of the case (SSOC) in December 2009. If the benefit sought on appeal remains denied, the Veteran should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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 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). ______________________________________________ J. D. DEANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs