Citation Nr: 1126017 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 06-16 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for vitiligo; and if so, whether the claim may be granted 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from December 1942 to August 1964. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in July 2009. This matter was originally on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issues of entitlement to increased ratings for service-connected disabilities and, the issues of entitlement to service connection for right ankle pain, sleep disorder, cold weather injury to right big toe, back pain, sinus headaches, gout, hypothyroidism, allergic rhinitis, and calluses have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 issue of entitlement to service connection for hypertension 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. A claim for service connection for vitiligo was denied by a December 1964 rating decision that was not appealed. The Veteran's request to reopen his claim for service connection for a skin condition (vitiligo) was denied by a January 1996 rating decision that was not appealed. 2. Evidence submitted subsequent to the January 1996 rating decision does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The December 1964 rating decision which denied a claim for service connection for vitiligo and the January 1996 rating decision (issued in February 1996) which denied reopening the Veteran's previously-denied claim for service connection for vitiligo are final. 38 U.S.C. §§ 4005(c) (1958, Supp. 1962) and 7105(c) (West 1991); 38 C.F.R. §§ 3.104 (1964 and 1996), 19.2 (1964), 20.302, 20.1103 (1995). 2. New and material evidence has not been submitted, and the claim of entitlement to service connection for vitiligo is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Pursuant to the Board's July 2009 and November 2010 Remands, the RO requested VA outpatient clinic records identified by the Veteran, readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's July 2009 and November 2010 Remands. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 As provided for by the VCAA, the United States Department of Veterans Affairs (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); 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. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate those element or elements required to establish service connection that were found insufficient in the previous denial. In other words, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. The basis for the denial in the prior decision can be ascertained from the face of that decision. VA has met all statutory and regulatory notice and duty to assist provisions. Letters dated in July 2005, November 2009, and November 2010 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473, Kent, 20 Vet. App. at 1. Together, the letters informed the appellant of what evidence was required to reopen and substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Veteran's service treatment records and medical records from Reynolds Army Community Hospital have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has identified medical records from the VA outpatient clinic at Fort Sill; however, the RO has been unsuccessful in obtaining them. In February 2010, the VA OPC at Lawton/Fort Sill confirmed that they had searched their files on the Veteran but had no records. In March 2010, the RO made a formal finding of the unavailability of medical treatment records from VAMC Oklahoma for Lawton-Fort Sill OPC. In March 2010, the Veteran was informed of this; and he was asked to send these records to VA. To date, these records have not been submitted. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Board notes that the Veteran's representative argued in the May 2011 Post Remand brief that the Veteran had not been afforded a VA examination to conclude whether he had symptomatology of vitiligo during service and whether the Veteran's vitiligo was etiologically related to his military service. As noted above, service connection for vitiligo was denied in December 1964 because the RO concluded that vitiligo was a congenital disorder for which compensation could not be paid. The record indicates that the Veteran has suffered from vitiligo before, during, and after service. As the Veteran has not submitted evidence sufficient to reopen his claim for service connection for vitiligo, a VA examination is not warranted. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) New and Material Evidence In a decision dated in December 1964, the RO denied the Veteran's claim for service connection for vitiligo. The Veteran did not appeal this decision. In a decision dated in January 1996 and issued in February 1996, the RO denied the Veteran's request to reopen his previously-denied claim for service connection for vitiligo. The Veteran did not appeal this decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. §§ 4005(c) (1958, Supp. 1962) and 7105(c) (West 1991); 38 C.F.R. §§ 3.104 (1964 and 1996), 19.2 (1964), 20.302, 20.1103 (1995). Thus, the December 1964 and January 1996 decisions are final. The Veteran's application to reopen his claim of service connection for a skin condition to all extremities was received in June 2005. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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). The Board notes that by a November 2005 rating decision, the RO adjudicated the claim for entitlement to service connection for a skin disorder on the merits. On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre- existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled in service, except as to defects, infirmities, or disorders noted at entrance into service, or where evidence or medical judgment is such as to warrant a finding that an injury or disease existed prior thereto. 38 U.S.C.A. §§ 1111, 1110 (2010). Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. VAOPGCPREC 3-2003 (July 16, 2003). A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). Although the Veteran had vitiligo during service, "loss of pigment in skin and hair" was noted on entrance into service. Although diseases that are congenital, developmental, or familial are ordinarily found to have pre-existed a claimant's military service, there may be instances in which guidance is necessary regarding the actual time of inception. VA's General Counsel has determined that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990). Moreover, diseases of hereditary origin can be considered incurred, rather than aggravated, in service "if their symptomatology did not manifest itself until after entry on duty." VAOPGCPREC 67-90 (July 18, 1990). Service connection may also be granted for resultant disability caused by any superimposed disease or injury. The Veteran's claim for service connection for vitiligo was denied in December 1964 because the vitiligo was considered a constitutional or developmental abnormality and not a disability under the law. Based on the grounds stated for the denial of service connection for vitiligo in the December 1964 rating decision, new and material evidence would be medical evidence indicating that the Veteran's vitiligo (1) is acquired and not congenital; (2) is a congenital disease permanently worsened by his military service and not due to the natural progress of the disease; or (3) is a congenital defect superimposed by disease or injury. In this regard, additional evidence received since the January 1996 rating decision includes various post-service medical treatment records and written statements by the Veteran and his representative, none of which address the basis for the denial in the 1964 decision. The Board has considered the evidence received since the January 1996 rating decision and finds that there is still no evidence that the Veteran's vitiligo is acquired and not congenital; is a congenital disease permanently worsened by his military service and not due to the natural progress of the disease; or is a congenital defect superimposed by disease or injury. Accordingly, the Board finds that the evidence received subsequent to the January 1996 rating decision is not new and material and does not serve to reopen the claim. ORDER New and material evidence not having been submitted, the claim for entitlement service connection for vitiligo is not reopened. REMAND The Veteran seeks service connection for hypertension. To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The Veteran's service treatment records indicate blood pressure readings of 150/90 on induction in December 1942, 110/80 also in December 1942, 132/72 in February 1946, 130/80 in March 1946, 128/70 in March 1950, 130/68 in August 1954, 140/80 in March 1958, 136/84 in January 1959, 154/100 in September 1961 with impression of transient high blood pressure, 138/88 in April 1962, 120/80 in September 1962, and 128/76 in February 1963. On the clinical examination for retirement from service, the Veteran's blood pressure reading was 138/80. On the Reports of Medical History completed by the Veteran in January 1959, February 1963, and in April 1964 in conjunction with his retirement physical, the Veteran denied ever having high or low blood pressure. The Veteran was afforded a VA examination in April 2010. After physical examination of the Veteran and review of the claims file, the examiner diagnosed the Veteran with hypertension. The examiner noted that the service treatment records showed transient high blood pressure 154/100 on October 19, 1960 when Veteran was reportedly having some emotional stress. The examiner noted that there was no other evidence that the Veteran had high blood pressure while in service, that there was no evidence that he was receiving treatment for high blood pressure while in service, and that there was no evidence that the Veteran was diagnosed with hypertension within 5 years of his discharge from service. The examiner opined that it was less likely than not that the Veteran's hypertension was secondary to treatments the Veteran received in service. In December 2010, the claims file was returned to the VA examiner who conducted the April 2010 examination for an addendum opinion. The examiner noted that during service the Veteran's blood pressure readings ranged from 128/76 to 140/80 with the exception that there was documented evidence of a one-time elevated blood pressure of 154/100 on October 19, 1960 when the Veteran reported having some emotional stress and was diagnosed with transient high blood pressure. The examiner noted that there was no other documented evidence that the Veteran had high blood pressure while in the military. The examiner noted that the Veteran's rating examination in December 1964 conducted after his discharge from service showed a blood pressure reading of 136/86. The examiner opined that it was less likely than not that the Veteran's hypertension was related to active military service including the symptoms of elevated blood pressure readings and diagnosis of a transient hypertension documented during the Veteran's active duty service. In April 2011, VA received a letter from a Family Nurse Practitioner which states that the Veteran had been under his medical care for the prior 12 months, that the Veteran stated that he was originally diagnosed and started on medication treatment in 1964 before his retirement from military service, that he had no evidence of this based on medical documentation in the record only the Veteran's word which had always been forthright. In light of this new evidence and the fact that the Veteran is competent to state that he was prescribed hypertension medication and received treatment for hypertension during his active duty service, in order to afford the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. In this regard, an additional medical opinion in conjunction with the review of the entire record is warranted to address the question as to whether or not the Veteran's current hypertension is related to his active duty service. Accordingly, the case is REMANDED for the following action: (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. The claims file must be made available to and reviewed by a physician who should provide an opinion as to whether it is at least as likely as not that the Veteran's current hypertension is related to the symptoms documented during his active duty service. The physician should be advised that the Veteran has stated that he was treated for and prescribed medication for hypertension during his active duty service and that the Veteran is competent to report such treatment. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). 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. 2. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs