Citation Nr: 1119596 Decision Date: 05/20/11 Archive Date: 05/27/11 DOCKET NO. 09-38 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for right ear hearing loss has been submitted. 2. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for PTSD has been submitted. 3. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for a low back disability has been submitted. 4. Entitlement to service connection for a right knee disability, to include degenerative arthritis and status post total knee arthroplasty. 5. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from May 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). Although the RO adjudicated the issues of entitlement to a low back disability and PTSD on the merits, the Board is required to determine whether new and material evidence has been presented when a claim has been previously disallowed based upon the same factual basis. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). For this reason, the Board has listed the issues on the title page as whether new and material evidence was received to reopen the claims for service connection. The issues of entitlement to service connection for a low back and bilateral knee disabilities are 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. In December 2010, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, via written correspondence, that a withdrawal of the appeal of whether new and material evidence had been submitted sufficient to reopen the claims for entitlement to service connection for right ear hearing loss and PTSD was requested. 2. An April 1981 decision letter declined to reopen a claim for entitlement to service connection for a low back disability because the Veteran had not submitted new and material evidence showing an in-service back injury, a current low back disability, or a link between any current low back disability and his military service. 3. Evidence received since the April 1981 decision letter is neither cumulative nor redundant and raises a reasonable possibility of substantiating the Veteran's low back claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issues of whether new and material evidence had been submitted sufficient to reopen the claims for entitlement to service connection for right ear hearing loss and PTSD have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010). 2. The April 1981 decision that declined to reopen the claim for entitlement to service connection for a low back disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2010). 3. Evidence received since the April 1981 decision in relation to the Veteran's claim for entitlement to service connection for a low back disability is new and material, and, therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claims of Whether New and Material Evidence had been Submitted for Right Ear Hearing Loss and PTSD 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 in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2010). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2010). The Board notes the August 2009 statement of the case (SOC) included the issues of whether new and material evidence had been submitted sufficient to reopen the claims for entitlement to service connection for right ear hearing loss and PTSD. The Veteran properly appealed these issues in his October 2009 substantive appeal. However, the Veteran subsequently indicated in a December 2010 written statement that he wished to withdraw his appeal of those issues. Hence, there remains no allegation of error of fact or law for appellate consideration regarding those claims. Accordingly, the Board finds that the issues of whether new and material evidence had been submitted sufficient to reopen the claims for entitlement to service connection for right ear hearing loss and PTSD have been properly withdrawn by the Veteran and the claims are dismissed. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans 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). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's low back claim. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. The claim on the merits requires additional development, which is addressed in the remand below. New and Material Evidence Claim The Veteran claims he has a low back disability as a result of his military service. Specifically, he contends that he injured his back when his truck ran over a mine that exploded during his military service in Vietnam. Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2010). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a) (2010). In an April 1981decision letter, the RO explained that the Veteran's claim for entitlement to service connection for a low back disability could not be reopened because the Veteran had not submitted new and material evidence showing that he had a low back injury in service, a current low back injury, or evidence linking any current low back disability to his military service. The Veteran did not file a timely notice of disagreement (NOD), or otherwise indicate a desire to appeal the decision to the Board. As no correspondence was received from the Veteran within the appeal period with respect to the issue of entitlement to service connection for hepatitis, the April 1981 decision is final. At the time of the April 1981 decision, the record included service treatment records showing that the Veteran reported at the time of his June 1968 induction medical examination a history of recurrent back pain, but examination of the spine was normal. The Veteran's medical examination at separation in November 1970 also indicated a normal spine. The service treatment records do not otherwise indicate complaints, treatment, or diagnosis of back problems in service. The record also included a March 1981 statement from the Veteran's business partners noting that for the previous four years the Veteran's productivity and efficiency had been impaired by back problems. A March 1981 letter from a private chiropractor noted treatment from July 1980, to include for severe back pain. The letter contended that contemporaneous x-rays showed subluxation complex of the lumbosacral spine. Potentially relevant evidence received since the April 1981 decision includes VA outpatient treatment records, a September 1981 VA Agent Orange medical examination report, and written statements from the Veteran and a friend. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that 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). Again, the Veteran claims he incurred a low back disability during his military service when a truck he was driving tripped a mine and was damaged. For evidence to be new and material in this matter, it would have to tend to show that the Veteran had an in-service low back injury, a current low back disability, or evidence of a link between any current low back disability and the Veteran's military service. The Board finds the evidence received since the April 1981 decision is new and material. The Board notes that VA treatment records beginning with September 1981 x-rays show degenerative arthritis of the lumbar spine. Therefore, since April 1981, the newly submitted evidence includes a current diagnosis of a low back disability. Presuming the credibility of the evidence for the sole purpose of determining whether the claim should be reopened, the Board concludes that the VA treatment records since April 1981, the September 1981 VA Agent Orange examination report, and the Veteran's statements, at the very least, raise a reasonable possibility of substantiating the claim and constitute new and material evidence sufficient to reopen the Veteran's low back claim. However, as will be discussed more fully below, the Board finds that additional development is necessary prior to adjudication of the claim of entitlement to service connection for a low back disability on the merits. ORDER The appeal regarding the claim of whether new and material evidence had been submitted sufficient to reopen the claims for entitlement to service connection for right ear hearing loss is dismissed. The appeal regarding the claim of whether new and material evidence had been submitted sufficient to reopen the claims for entitlement to service connection for PTSD is dismissed. New and material evidence having been received, the claim for entitlement to service connection for a low back disability is reopened; the appeal is granted to this extent only. REMAND As noted above, the Veteran claims that he incurred a low back injury during service in Vietnam. In addition, he also asserts that he has current right and left knee disabilities due to his Vietnam service. Specifically, the Veteran asserts that during his service as a combat engineer in Vietnam his duty included driving a truck that was configured to trip mines. He claims that on one occasion the truck tripped a mine and he injured his back and his knees when they were jammed into the dashboard. The Veteran contends that he has had ongoing back and bilateral knee pain following that incident. In addition, the Veteran appears to be asserting that he had a back disability that preexisted service and was permanently aggravated as a result of his military service. A review of the claims file reveals that a remand is necessary before a decision on the merits can be reached for the issues of entitlement to service connection for the low back and bilateral knees. VA's duty to assist also includes a duty to provide the Veteran with a proper medical examination or opinion when warranted. In this respect, the Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Initially, the Board notes the Veteran had approximately one year of service in Vietnam, where his principal duties included Pioneer, Combat Engineer, and Heavy Dump Truck Driver. Given the Veteran's service as a Combat Engineer, the Board recognizes that he had combat service in Vietnam. In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. As the Veteran's report of a mine explosion while driving a truck configured as a minesweeper is consistent with the time, place, and circumstances of his service, such an incident is presumed to have occurred. As discussed above, the Veteran has a currently diagnosed disability of the low back. With respect to the Veteran's right knee, he had evidence of significant degenerative arthritis for which he underwent a total knee arthroplasty in September 2009. The treatment records do not indicate a currently diagnosed left knee disability. However, the Veteran has indicated ongoing problems for his left knee since service. Similarly, he has indicated that his low back and right knee problems have been ongoing since service. In light of the foregoing, the Board finds that a VA examination is warranted to clarify the above issues. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). The RO should also take the opportunity to obtain relevant VA treatment records from October 2009 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records and hospitalization records for the Veteran's conditions from all appropriate VA medical facilities from October 2009 to the present. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records. 2. After the above evidence is obtained, to the extent available, schedule the Veteran for appropriate VA examinations for his low back and bilateral knees. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. (a) After reviewing the file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed low back, right knee, or left knee disability was caused or aggravated by his military service. (b) In addition, the examiner is requested to opine as to whether there is clear and unmistakable evidence that any diagnosed low back disability preexisted service and, if so, whether such disability was permanently aggravated by service beyond the natural progression of the disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After the above is complete, readjudicate the Veteran's claims. If one or more of the claims remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs