Citation Nr: 1216618 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 08-30 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for multiple sclerosis (MS). 2. Whether new and material evidence has been submitted to reopen the claim for service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy. 3. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for MS. 5. Entitlement to pension with special monthly pension benefits (SMP). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to April 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction rests with the Seattle, Washington RO. The Board notes that the Veteran submitted additional evidence after the June 2011 Supplemental Statement of the Case (SSOC). However, in December 2011, she waived RO consideration of the evidence in the first instance. The issues of entitlement to service connection for an acquired psychiatric disability to include PTSD, service connection for MS and entitlement to pension with SMP 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. Service connection for MS was last denied in a February 2003 rating decision. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. 2. The evidence added to the record since the February 2003 decision with regard to MS is not cumulative or redundant of the evidence previously of record. 3. Service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy was last denied in a February 2003 rating decision. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. 4. No evidence specifically relating to the issue of entitlement to service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy has been received since the last final denial. CONCLUSIONS OF LAW 1. The February 2003 rating decision denying service connection for MS is final. New and material evidence to reopen the claim for service connection for MS has been received. 38 U.S.C.A. §5108 (West 2002); 38 C.F.R. § 3.156 (a) (2011). 2. The February 2003 rating decision denying service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy is final. New and material evidence to reopen the claim for service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy has not been received. 38 U.S.C.A. §5108 (West 2002); 38 C.F.R. § 3.156 (a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. The record reflects that the originating agency provided the Veteran with the notice required under VCAA by letter dated in April 2007. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Available service and post service records have been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. NEW AND MATERIAL EVIDENCE Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). MS In November 1976, the Veteran submitted a claim for service connection for MS. In an August 1977 rating decision, service connection was denied. The RO found that there was no evidence of MS in service or within the presumptive period following discharge from service. The Veteran perfected an appeal. In a July 1978 decision, the Board denied service connection for MS. It was determined that MS was not present during service or within years thereafter. In a September 1984 rating decision, the RO found that new and material evidence to reopen the claim for service connection for MS had not been submitted. The Veteran perfected an appeal. In a May 1985 Board decision, it was determined that new and material evidence to reopen the claim for service connection for MS had not been submitted. In April 2001, the RO received a statement on the Veteran's behalf for service connection for MS based on clear and unmistakable error. In July 2001, the RO sent the Veteran a letter informing her that to reopen her claim new and material evidence must be submitted. No evidence was submitted. In November 2002, the Veteran submitted an application to reopen the claim for service connection for MS. The application to reopen was denied in a February 2003 rating decision. The Veteran received notice of the denial in February 2003. The RO related that the Veteran's claim was previously denied as MS was not shown in service nor diagnosed during the presumptive period. The RO found that the evidence submitted was duplicative of the evidence previously considered by the Board. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. At the time of the last final denial, the record contained service treatment records to include records showing complaints of nervousness and stomach pains. In March 1965, the Veteran had difficulty with nervousness, tension and depression associated with irritable bowel syndrome. She also had feelings of lethargy and fatigue, loss of appetite, and sleep disturbance. It was determined that the Veteran had a personality problem. Of record were articles discussing the Veteran's life with MS; the book authored by the Veteran about her MS; a January 1976 statement from Dr. S that the Veteran most likely diagnosis was MS; a November 1976 examination which noted neurological changes; a December 1976 hospital summary which diagnosed MS and chronic anxiety; and a May 1977 statement from Dr. I that it was valid to support the contention that the Veteran's MS had been in the preliminary stages for several years. The record also contained the Veteran's claim for compensation. Since the last final denial in February 2003, the Veteran has submitted a statement from her husband discussing how MS affects her life; outpatient treatment records showing a history of and treatment for MS and Social Security records which pertain to the Veteran's inability to maintain employment. Also in July 2010, Dr. S submitted a statement in which he noted review of the Veteran's file. He related that MS is often a misdiagnosed condition. He opined that the record showed very early, while in service or shortly thereafter, that the Veteran presented with signs and symptoms of MS which was inadvertently and unintentionally overlooked. Per Dr. S, it was not unusual or uncommon to misdiagnose MS. In an August 2010 statement, Dr. L related that the Veteran's MS continued and that exacerbations of her symptoms may be expected to continue over time. In November 2011, Dr. L expressed that the Veteran had MS which became apparent in 1966 while she was in service and that in 1976 she had a major exacerbation which resulted in severe disability. Via various statements the Veteran has related that her MS started in service. Per the Veteran, her tremors started immediately while in boot camp and that such continue today. She expressed having a dysfunctional bladder and visual problems which she did not associate with anything at that point in time. She also related having emotional upsets tremendously in service. Upon review of the record, the Board has determined that new and material evidence to reopen the claim for service connection for MS has been submitted. The Veteran's claim for service connection was previously denied because it was found that there was no evidence of MS in service or within the presumptive period following discharge from service. Since the last final denial, evidence has been submitted showing a possible link between the Veteran's MS and service. To that end, Dr. S opined that the Veteran presented with MS signs and symptoms while in service or shortly thereafter which was inadvertently and unintentionally overlooked. Dr. L also found that the Veteran had MS which became apparent in 1966 while she was in service. The above constitutes new and material evidence. When viewed in the context of the reasons for the prior denial the evidence is relative and probative of the issue at hand. Thus, the Board concludes that new and material evidence has been presented to reopen the claim. Accordingly, the claim is reopened. Seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy In November 2002, the Veteran submitted a claim for service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, and low blood pressure. In a February 2003 rating decision, service connection was denied. The RO found that there was no evidence of a chronic disorder related to the above claimed conditions noted during service or within the presumptive period after discharge. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. At the time of the last final denial, the record contained service treatment records to include records showing the Veteran had difficulty with nervousness, tension and depression associated with irritable bowel syndrome in March 1965. She also had feelings of lethargy and fatigue, loss of appetite, and sleep disturbance. It was determined that the Veteran had a personality problem. Of record was a December 1976 neurological examination which showed complaints of fatigue. The record also contained the Veteran's November 2002 claim for compensation. Since the last final denial in February 2003, the Veteran has submitted a statement from her husband discussing her MS; outpatient records showing a history of and treatment for MS; and Social Security records showing the Veteran's inability to maintain employment. On careful review of the record, the Board has determined that new and material evidence to reopen the claim for service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy has not been submitted. The Veteran's claim for service connection was previously denied on the basis that there was no evidence of a chronic disorder related to the above claimed conditions during service or within the presumptive period after discharge. Since the last final denial, the Veteran has not submitted any evidence specifically relating to this issue. In light of the foregoing, the Board concludes that new and material evidence has not been presented to reopen the claim for service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy. Stated differently, service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy was denied in the past because it was found that there was no evidence of a chronic disorder related to the above claimed conditions during service or within the presumptive period after discharge. No material facts have changed. ORDER The application to reopen the claim for service connection for MS is granted. The application to reopen the claim for service connection for seizures, blackouts, abdominal pain, mood swings, neurological disorders, low blood pressure and lethargy is denied. REMAND Having reopened the Veteran's claim for service connection for MS, we find that further development is needed for proper adjudication of the claim. Service treatment records reveal that the Veteran had difficulty with nervousness, tension and depression associated with irritable bowel syndrome in March 1965. She also had feelings of lethargy and fatigue, loss of appetite, and sleep disturbance. It was determined that the Veteran had a personality problem. Examination in April 1965 diagnosed an abdominal mass. In November 1976, Dr. I related that it was valid to support the contention that the Veteran's MS had been in the preliminary stages for several years. Also in July 2010, Dr. S opined that the record showed very early, while in service or shortly thereafter, that the Veteran presented with signs and symptoms of MS which was inadvertently and unintentionally overlooked. In November 2011, Dr. L expressed that the Veteran had MS which became apparent in 1966 while she was in service. Via various statements the Veteran has related that her MS started in service. Per the Veteran, her tremors started immediately while in boot camp and that such continue today. She expressed having a dysfunctional bladder and visual problems which she did not associate with anything at that point in time. In light of the service treatment records, private opinions and Veteran's statements, the Board finds that further development is needed for proper adjudication of this claim. In this regard, the evidence shows a current disability and possible in service manifestations. An etiology opinion has not been rendered on this matter, as such a remand is warranted. The Veteran has appealed the denial of service connection for a psychiatric disability to include PTSD. The Veteran has related having emotional upsets in service. Per the Veteran, she witnessed lesbian acts while assigned to the bed check of the ladies. She also asserts several other in service stressors which caused her PTSD. Service treatment records show that the Veteran had difficulty with nervousness, tension and depression in March 1965. At that time, it was determined that she had a personality problem characterized by immaturity and impulsivity. Her condition was described as emotionally unstable personality, passive dependent type. She was recommended for administrative separation for the good of the Navy. In May 1977, it was noted that the Veteran was a patient of MS and had a variety of emotional problems. Dr. L expressed in February 2011 that the Veteran had a number of medical issues to include PTSD and anxiety. Here, the evidence shows a current disability and a report of symptomatology in service. In light of the Veteran's statements, private treatment records and service treatment records, the Board finds that an examination and opinion is needed before the issue of service connection can be decided. Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i) , VA will obtain an examination or an opinion if it is necessary to decide the claim. We find that a VA compensation and pension examination is needed for proper adjudication of the above claims. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination(s) is required. We also note that the outcome of the claims for entitlement to pension with SMP and service connection for an acquired psychiatric disability to include PTSD (the Veteran asserts that her psychiatric disability to include PTSD is related to her MS) hinges on the outcome of the claim for entitlement to service connection for MS inasmuch as a grant of service connection for MS could affect the outcome of the claims for pension with SMP and service connection for an acquired psychiatric disability to include PTSD. As such, the Board finds that the claims are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, both issues are remanded. Accordingly, the case is REMANDED for the following action: 1. Obatin a medical opinion by a neurologist to determine if MS is related to service. The claims folder must be provided to the examiner for review. All appropriate testing should be conducted. Based on a review of the claims, the examiner should specifically state whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's disability is related to service. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinion with the service treatment records, any post-service diagnoses and opinions, and testimony of the Veteran. 2. Schedule the Veteran for an examination regarding the claim for an acquired psychiatric disability to include PTSD. The claims file must be made available to the examiner for review. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis (es). If a psychiatric disorder(s) to include PTSD is diagnosed, the examiner should specifically state whether it is more likely than not (i.e., probability greater than 50 percent) that any currently present diagnosed psychiatric disorder is related to service. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinion(s) with the service treatment records, post-service diagnoses, and testimony of the Veteran. 3. After completing any additional development deemed necessary, the AOJ should readjudicate the intertwined claim of entitlement to pension with SMP and entitlement to service connection for an acquired psychiatric disability PTSD. 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. 2011). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs