Citation Nr: 1131337	
Decision Date: 08/25/11    Archive Date: 09/07/11

DOCKET NO.  10-47 574	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for multiple sclerosis and, if so, whether service connection warranted.


REPRESENTATION

Appellant represented by:	Sean Kendall, Attorney at Law


ATTORNEY FOR THE BOARD

H. Yoo, Associate Counsel


INTRODUCTION

The Veteran had active service from June 8, 1970, to July 30, 1970.

This matter came before the Board of Veterans' Appeals (Board) on appeal from decision of November 2009 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO).

The issues of entitlement to service connection for multiple sclerosis addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. A claim of service connection for multiple sclerosis was previously denied by the Board in March 2007.  The Veteran was notified of this decision and of his appellate rights.  He did not timely appeal.

2. Evidence received since the March 2007 decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for multiple sclerosis.


CONCLUSION OF LAW

1. The March 2007 Board decision denying service connection for multiple sclerosis is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010).

2. Since the March 2007 Board decision, new and material evidence has been received to reopen the claim of entitlement to service connection for multiple sclerosis.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

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 and 3.326(a) (2010).  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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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.

Pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), the veteran must be apprised as to the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence.  Kent further requires that the notice inform the veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim.

In light of the favorable outcome of this appeal with respect to the issue of whether new and material evidence has been submitted to reopen the claim (reopening of the claim by the Board), any perceived lack of notice or development is not prejudicial.  See 38 U.S.C.A. §§ 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 (2010).

New and Material Evidence

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.  New evidence means existing evidence not previously submitted to agency decisionmakers.  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.  See 38 C.F.R. § 3.156(a).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).  Regarding materiality, the Court has held that the newly presented evidence need not be probative of all the elements required to award the claim but that the evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim.  Evans v. Brown, 9 Vet. App. 273 (1996).  Evidence that is merely cumulative of other evidence in the record is not new and material even if it was not previously associated with the record/considered.  Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000).

Furthermore, in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."

Prior to the current claim, the Veteran's claim for entitlement to service connection for multiple sclerosis was last denied in a March 2007 Board decision.  The Board determined that while the objective medical evidence demonstrated a diagnosis of multiple sclerosis, there was no evidence that it was related to, or started during, his military service.  The Veteran did not appeal; accordingly, the March 2007 Board decision is final.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302.  The evidence of record at the time of the March 2007 Board decision was service treatment records, private and VA treatment records, and the Veteran's statements.

The Veteran submitted a new claim of service connection for multiple sclerosis in January 2009 and was denied by the RO in November 2009.  The Veteran timely appealed this decision.

According to the evidence submitted since the March 2007 Board decision, Dr. C. N. Bash's October 2000 letter stated that the Veteran has a diagnosis of multiple sclerosis and his service connected "headaches and waxing and waning (left and right) visual acuity were his first symptoms of his later diagnosed (1990s) [m]ultiple [s]clerosis.  These symptoms were all present during the [Veteran's] service and during the sever-year presumptive period following his service."

The medical evidence above is "new" because it was not previously considered by the Board and is not redundant of evidence previously considered.  It is "material" because it constitutes medical evidence that the Veteran currently has multiple sclerosis possibly related to his military service, which was the reason service connection was denied previously.

Therefore, since there is new and material evidence, the claim is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  It now must be readjudicated on the underlying merits, i.e., on a de novo basis.


ORDER

As new and material evidence has been received, the claim for multiple sclerosis is reopened and, to that extent only, the appeal is granted.



REMAND

The Veteran and his representative contend, in substance, that the Veteran's multiple sclerosis is related to his military service secondarily to his service connected migraine headaches (30 percent disability rating) and brow ptosis, left eye associated with left eyebrow scar, residuals of head laceration (noncompensable disability rating).

Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  38 C.F.R § 3.303 (2010); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).  Service connection may also be granted for disability shown to be proximately due to, or the result of, a service-connected disorder, or for the degree of additional disability resulting from aggravation of a non service- connected disorder by a service-connected disorder.  See Allen v. Brown, 7 Vet. App. 439 (1995).

Multiple sclerosis may be presumptively service connected if it becomes manifest to a degree of 10 percent or more within seven year of leaving qualifying military service.  38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2010).

A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.  38 C.F.R. § 3.159(c)(4).

Unfortunately, a remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010).

As stated above, the Veteran submitted a claim to reopen his claim for entitlement to service connection for multiple sclerosis in January 2009.  He provided an October 2000 letter from Dr. C. N. Bash stating that the symptoms of headaches and diminished visual acuity were first symptoms of his multiple sclerosis. 

The Veteran was afforded a VA examination in July 2009, where the VA examiner (who did not have an opportunity to review the evidence of record at this time), upon a physical examination, the Veteran's statements, and review of the medical literature, determined the Veteran did not have a diagnosis of multiple sclerosis.  In October 2009, the same VA examiner submitted an addendum to the July 2009 VA examination report, stating that after an "[e]xhaustive page by page review of the [claims file], [service medical records, and medical literature... [t]his did not alter my opinion(s): 1. The [Veteran] does not have multiple sclerosis, 2. there was no noted ptosis of this left eye while in military service, 3. [i]f the [Veteran] did have multiple sclerosis, it is not due to the laceration sustained to the supra orbital eyebrow area of the left eye.  If the [Veteran] did have multiple sclerosis, it is not due to any ptosis that may have been present." 

The Board notes, however, that it is clear from the medical evidence within the claims file that the Veteran does have a diagnosis for multiple sclerosis.  Several private doctors including, Dr. Bash, and the VA treatment records confirmed the Veteran's diagnosis.  The VA examiner did not address the existence of these diagnoses from the medical professionals, noted above.

Therefore, the Board finds an additional addendum to the July 2009 VA examination is necessary addressing the diagnoses of multiple sclerosis from private and VA doctors and how the Veteran's service-connected disabilities of migraine headaches and brow ptosis, left eye associated with left eyebrow scar, residuals of head laceration, may or may not be related (or symptoms of) to his multiple sclerosis.  

Accordingly, the case is REMANDED for the following action:

1. The AMC must request an opinion from the same VA examiner who conducted the July 2009 examination.  In an addendum, the examiner should specifically address the findings and opinions from private physicians Drs. C. N. Bash, N. Urich, S. Vettichira, and V. Kabaria, who have confirmed the diagnosis of multiple sclerosis.  

The VA examiner is also asked to review all evidence within the Veteran's claims file, which includes numerous VA treatment records which diagnosis the Veteran with multiple sclerosis.  In addition, the VA examiner is asked to address the evidence in relation to whether it is possible (should the diagnosis of multiple sclerosis is confirmed) that the Veteran's disability is related to his service-connected disabilities of migraine headaches and brow ptosis, left eye associated with left eyebrow scar, residuals of head laceration.   If an opinion cannot be medically determined without resorting to mere conjecture, this should be commented upon in the report.

The entire claims file and a complete copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination and this fact should be acknowledged in the report.  If the examiner determines that a new examination is required, or the same examiner is not available, a new comprehensive examination must be conducted.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  Furthermore, a complete rationale should be given for all opinions and conclusions expressed.

2. Upon completion of the addendum, review the examiners' report to ensure substantial compliance with the Board's directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Take any needed corrective action.  38 C.F.R. § 4.2.

3. After completion of the above and any additional development deemed necessary, the expanded record should be reviewed and it should be determined if the Veteran's claim can be granted.  If the claim is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC), and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review.

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. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs