Citation Nr: 1123860	
Decision Date: 06/23/11    Archive Date: 06/29/11

DOCKET NO.  09-12 112	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for a groin condition.

2.  Entitlement to service connection for a groin condition.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Delhauer, Law Clerk



INTRODUCTION

The Veteran served on active duty from August 1966 to April 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

The Veteran requested a Board hearing in his April 2009 substantive appeal.  One was scheduled for him in May 2011, but he did not appear for it.  As he has not provided an explanation for his absence at the hearing, and has not requested an additional hearing, the Board finds that his hearing request is withdrawn, such that appellate adjudication may proceed.

The reopened issue of entitlement to service connection for a groin condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDINGS OF FACT

1.  A May 1969 rating decision denied service connection for a groin condition and the Veteran did not appeal that decision.

2.  Evidence received since the time of the final May 1969 rating decision raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a groin condition.


CONCLUSIONS OF LAW

1.  The May 1969 rating decision is final.  38 U.S.C. § 4005(c) (1964); 38 C.F.R. § 3.104, 19.118, 19.153 (1969); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).
2.  Evidence submitted to reopen the claim of entitlement to service connection for a groin condition is new and material, and therefore, the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify claimants of information and evidence necessary to substantiate their claims, and redefined its duty to assist them in obtaining such evidence.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2010).  Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claim.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]."  38 U.S.C.A. § 5103A (f) (West 2002).  Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim.  38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996).  

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when the evidence establishes that the disease was incurred in service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

New evidence means existing evidence not previously submitted to VA.  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 C.F.R. § 3.156(a) (2010).

The RO denied service connection for a groin condition in May 1969, and notified the Veteran of the decision the same month.  The rating decision was not appealed and that decision is final.  38 U.S.C. § 4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1969); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).  The basis of the May 1969 denial was that the evidence of record did not show a currently diagnosed groin condition.  

To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  The credibility of the new evidence is presumed for the purpose of determining whether the new evidence is material.  Justus v. Principi, 3 Vet. App. 510 (1992).  

Since the May 1969 rating decision, evidence added to the record includes an August 2007 lay statement by the Veteran, an April 2009 statement by the Veteran's private physician, and an August 2009 VA examination report.

The August 2009 VA examination included an ultrasound of the Veteran's scrotum which revealed small bilateral hydroceles and small bilateral epididymal cysts.  The VA examiner then diagnosed hydroceles of the bilateral testicles.  Thus, a diagnosed groin condition is now of record.  

The August 2009 VA examination report is "new," as it had not been previously considered by VA.  It is also "material," as the diagnosis of a groin condition made by the examiner addresses the basis on which the Veteran's claim was previously denied.  Thus, the content of the examination report raises the reasonable possibility of substantiating the Veteran's claim.  Because new and material evidence has been submitted, the issue of entitlement to service connection for a groin condition must be reopened.


ORDER

New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a groin condition is reopened, and to that extent only, the appeal is granted.


REMAND

In an August 2007 written response to the RO's July 2007 letter, the Veteran indicated that in 1971, two years after his service separation and two years after he filed his original claim, a private physician conducted a physical examination for the Veteran's job with Active Industries in Michigan.  The Veteran reported being informed by the doctor he had herniated blood vessels in the left groin area.  This examination report is not of record and must be obtained prior to appellate adjudication, especially since a groin condition was diagnosed at that examination.  When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal.  See 38 C.F.R. § 3.159(c)(1); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

This appeal must also be remanded to obtain an adequate nexus opinion.  The August 2009 VA examiner's statements indicate she believed the Veteran's in-service groin condition resolved because the discharge physical was negative for any left groin problems, and because there was no evidence of record he had been seen for his condition one year after discharge.  However, the Veteran filed his claim for groin pain less than a month after service separation, and he has stated he was diagnosed with a groin condition two years after service separation.  

Further, the Veteran contended in his August 2008 Notice of Disagreement that he complained of groin pain at his service separation examination, but that it was not documented.  The Veteran noted that a paralyzed arm diagnosed as a pinched radial nerve and treated in service also was not documented at his service separation.  This condition and treatment is of record in the Veteran's service treatment records, which only makes more credible the Veteran's assertions that his reported groin symptomatology went undocumented.  The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim).  It is imperative that a VA examiner's opinion be based on the correct facts.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  Therefore, a new nexus opinion based on the correct factual premise must be obtained.

Accordingly, the issue of entitlement to service connection for a groin condition is REMANDED for the following actions:

1.  Send a letter to the Veteran and request that he provide records of the 1971 physical examination performed by a local doctor for his job at Active Industries in Michigan, or provide the name and address of the physician and/or facility as well as the necessary authorization so that VA may obtain such records.  If these records cannot be obtained from the physician, ask the Veteran for authorization to contact Active Industries and request a copy of the records from them.  Associate any obtained records with the claims file.  Document all attempts to secure this evidence in the claims file.  If, after making reasonable efforts to obtain these records the agency of original jurisdiction (AOJ) is unable to secure them, notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; and (c) describe any further action to be taken by the AOJ with respect to the claim.  Provide the Veteran with an opportunity to respond.

2.  After obtaining a copy of the private physical examination, obtain an opinion from a VA examiner, other than the one who conducted the August 2009 VA examination, to determine the etiology of the currently diagnosed groin condition.  The claims folder and a copy of this Remand must be made available in conjunction with the examination.  The examiner should offer an opinion as to whether the groin condition diagnosed at the August 2009 VA examination is at least as likely as not (fifty percent probability or greater) related to the Veteran's documented in-service treatment for groin pain diagnosed as epididymitis in August 1968 and an indirect left inguinal hernia in September 1968.  All opinions should be supported by a clear rationale, which should include a discussion of the specific evidence on which the opinions are based.

3.  After undertaking the development above, readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, provide a supplemental Statement of the Case to the Veteran, and an appropriate period of time in which to respond.  Thereafter, return the appeal to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter 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).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs