Citation Nr: 1132500 Decision Date: 09/02/11 Archive Date: 09/12/11 DOCKET NO. 11-04 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for non-malignant thyroid disease, as due to exposure to ionizing radiation or Agent Orange. 2. Entitlement to service connection for brain disease, diagnosed as leukodystrophy, as due to exposure to ionizing radiation or Agent Orange. 3. Entitlement to a disability rating in excess of 10 percent for hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1950 to July 1953 and from February 1954 to August 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran resides in Germany and development of his claims was completed by the RO in Pittsburgh, Pennsylvania. The Veteran was previously denied entitlement to service connection for thyroid disease in un-appealed August 1991 and February 2003 rating decisions. The Board has recharacterized this issue as a petition to reopen a claim of entitlement to service connection for thyroid disease to reflect the procedural history. Applicable law provides that certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue. 38 C.F.R. § 19.35 (2010). The Veteran also was previously denied entitlement to service connection for brain disease in a November 2007 rating decision. He submitted a March 2008 letter contending that his brain disease was related to service, but not stating disagreement with the November 2007 denial. However, he later submitted an August 2008 letter referencing the denial of entitlement to service connection for brain disease and asking for review; the Board construes this document as a timely notice of disagreement (NOD) to the November 2007 rating decision. The RO did not issue a statement of the case (SOC) in response to the Veteran's August 2008 letter. An SOC addressing the claim of entitlement to service connection for a brain disorder was not issued until January 2011, in response to an August 2010 statement from the Veteran. Although the RO "reopened" the brain disease claim, its procedural history indicates that it is an original claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, to ensure compliance with applicable law. VA will notify the Veteran if further action is required on his part. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate a claim. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in cases involving the reopening of previously denied claims, notice must inform a claimant of the evidence and information that is necessary to reopen the claim and identify the bases of the last final denial. The Veteran was denied entitlement to service connection for thyroid disease in August 1991; the RO declined to reopen the claim in February 2003. The Veteran did not timely appeal either rating decision so they became final. 38 U.S.C. § 7105 (West 2009); 38 C.F.R. §§ 20.302, 20.1103 (2010). The RO mailed the Veteran a VCAA notice in May 2008, but the letter did not identify the basis for prior denial as required by Kent, 20 Vet. App. 1. The Veteran's petition to reopen a claim of entitlement to service connection for thyroid disease must be remanded for the provision of additional notice to the Veteran that, in accordance with Kent, identifies the date of the last final decision, the basis for that denial, and what evidence must be submitted in order for the claim to be reopened. A VA examination is warranted for the claim of entitlement to service connection for brain disease. VA is required to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has been diagnosed with leukodystrophy (brain disease). Due to the circumstances of his service, he is presumed to have been exposed to radiation as well as Agent Orange. The Director of VA's Compensation and Pension Service has provided an advisory opinion that the Veteran was not exposed to sufficient radiation to cause leukodystrophy, but VA and private treatment notes within the record correlate the his brain disease to radiation exposure. The question presented in this case is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA must supplement the record by seeking additional medical evidence. Id. The RO/AMC must schedule the Veteran for a VA examination to be completed while this case is in remand status. In regard to the Veteran's claim of entitlement to a disability rating in excess of 10 percent for bilateral hearing loss, the claims file reflects that he informed VA in January 2008 that he could no longer hear out of his right ear and desired a higher disability evaluation. He subsequently submitted May and December 2007 private audiology treatment notes. Upon request by the Pittsburgh RO, the U.S. Consulate in Germany forwarded a request for an audiological examination to a contract physician in February 2008. An August 2008 note within the claims file states "followed up on exam with embassy," but does not indicate whether an examination was conducted. The April 2010 rating decision stated that examination requests must be made through the White River Junction RO and that "several" unsuccessful attempts were made to schedule an examination. The rating decision refers to the private treatment notes submitted by the Veteran as not adequate for VA rating purposes. However, a January 2011 rating note appears to rely on the May 2007 private audiological evaluation, which did not include speech discrimination levels. A January 2011 SOC observes that one (1) February 2008 request was made for a VA hearing examination and that the RO attempted to follow up on the status of that request in later 2008. The SOC directs the Veteran to submit an examination report "if [he] attended a VA hearing exam." However, the SOC also states that the Veteran had "not submitted a VA hearing exam report" and rates his hearing disability on the 2007 private audiological evaluation. The RO's efforts towards providing the Veteran with an examination are unclear. The record contains a single request for a VA examination, rather than "several," as noted in the April 2010 rating decision. The RO has not determined whether or not that examination was conducted, and rated the Veteran's hearing disability on a private treatment note that pre-dates his claim for an increased evaluation. The record indicates that the private treatment note was deemed not adequate for VA rating purposes. Pursuant to 38 C.F.R. § 3.327(a) (2010), examinations will be requested whenever VA determines, as in this case, that there is a need to determine the exact nature, or severity, of a disability. See also 38 C.F.R. § 3.159 (2010). VA has the authority to schedule a compensation and pension examination when such is deemed necessary, and the Veteran has an obligation to report for that examination. While this case is in remand status, the RO/AMC must take appropriate steps to determine whether or not the Veteran did attend a VA hearing examination. If so, the RO/AMC must obtain a report of that examination and associate it with the claims file. If not, the RO/AMC must again attempt to schedule the Veteran for an examination to assess the current severity of his service-connected hearing disability. Snuffer v. Gober, 10 Vet. App. 400 (1997). The appeal is therefore REMANDED to the RO/AMC for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record, to include any records of additional VA or private medical treatment. The RO/AMC must provide the Veteran with necessary authorizations for the release of any private treatment records not currently on file - notify him that the last private audiological notes of record are dated December 2007. The RO/AMC must then obtain any identified records and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 2. Contemporaneously with the notice to the Veteran as detailed in paragraph 1, provide the Veteran and his representative with notice in accordance with the Kent decision cited to above. The notice must identify the bases for the prior denial of his claim for entitlement to service connection for thyroid disease and describe the evidence necessary to reopen the claim. 3. Schedule the Veteran for a VA examination at an appropriate location to determine whether his brain disease is the result of his military service, including the presumed exposures to radiation and Agent Orange. The following considerations will govern the examination: a. The entire claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. b. The examination report must reflect review of pertinent material in the claims folder. After reviewing the claims file and interviewing the Veteran, the examiner must provide an opinion as to whether the Veteran has any brain disease that is the result of his active duty service - to include exposure to radiation and/or herbicides. c. The examiner must independently review the record for pertinent evidence, but his or her attention is called to the following: i. A November 2004 private medical report stating that the changes seen in the Veteran's brain could be attributed to exposure to radiation, metabolic disorders, mitrochondriopathies, or toxins; ii. A June 2005 opinion by a physician at Landstuhl Regional Medical Center that leukodystrophy is due to radiation exposure; iii. A May 2006 private medical assessment indicating that hypothyroid encephalopathy, a metabolic disease, and/or an inflammatory process are also possible causes of the Veteran's brain disease; iv. December 2006 and August 2007 VA treatment notes attributing leukodystrophy to in-service radiation exposure; v. The June 2009 Nuclear Test Personnel Review (NTPR)'s estimates of the Veteran's radiation exposure of an external gamma dose of 16 rem and external neutron dose of 0.5 rem with an internal committed dose to the brain of 0.1 rem in both alpha and gamma radiation; vi. A February 2010 memorandum from the Director, Radiation and Physical Exposures (DRPE) stating that it was not likely that the Veteran's leukodystrophy was attributable to in-service ionizing radiation exposure; and vii. The March 2010 "Advisory Opinion - Radiation Review Under 38 C.F.R. § 3.311" reporting that there was no reasonable possibility that the Veteran's leukodystrophy was the result of his in-service exposure to ionizing radiation. d. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. If the examiner is unable to render an opinion without resort to speculation, he or she must explain why and so state. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. 4. Determine whether or not the Veteran has attended a VA hearing examination. If so, obtain a copy of the examination report and associate it with the record. If not, take steps to schedule the Veteran for a VA examination at an appropriate location to determine the current severity of his service-connected hearing disability. The following considerations will govern any examination: a. The entire claims folders and a copy of this remand must be made available to the examiner in conjunction with the examination. The examination report must reflect review of pertinent material in the claims folders - to specifically include the May and December 2007 private audiological treatment notes. b. After reviewing the claims file and interviewing and examining the Veteran, the examiner must provide current findings as to the severity of the hearing disability. If possible, a Maryland CNC controlled speech discrimination test must be conducted as part of the examination. In addition to providing objective test results, the examiner must fully describe the functional effects caused by the hearing disability. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. If the examiner is unable to render an opinion without resort to speculation, he or she must explain why and so state. d. All clinical findings must be reported in detail and correlated to a specific diagnosis in a typed report. 5. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. 6. Thereafter, consider all of the evidence of record and readjudicate the Veteran's claims. In regard to the claim for an increased evaluation for hearing loss, consider the propriety of a "staged" rating based on any changes in the degree of severity of the disability. The Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is notified that it is his responsibility to report for any examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). If the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any sent notice was returned as undeliverable. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).