Citation Nr: 1302783	
Decision Date: 01/25/13    Archive Date: 01/31/13

DOCKET NO.  09-30 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for hypertension.  

2.  Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a left shoulder disability.  

3.  Entitlement to nonservice-connected pension benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1988 to March 1991.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to service connection for hypertension and nonservice-connected pension benefits, and determined that new and material evidence had not been received sufficient to reopen the claim for left shoulder disability.  A notice of disagreement was filed in November 2008, a statement of the case was issued in June 2009, and a substantive appeal was received in August 2009.  In his substantive appeal, the Veteran requested a Board hearing; however, he withdrew this request in a November 2009 submission.  

To establish jurisdiction over the issue of service connection for left shoulder disability, the Board must first consider whether new and material evidence has been received to reopen the claim.  See 38 U.S.C.A. §§ 5108, 7105 (West 2002).  The Board must proceed in this fashion regardless of the RO's actions.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92.  As discussed fully under the analysis section, the Board finds that new and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for left shoulder disability has been received.  Accordingly, the Board is granting this portion of the Veteran's claim.  

The underlying de novo claim for service connection for left shoulder disability is addressed in the REMAND portion of the decision below and is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  Hypertension was not manifested during service, was not manifested within a year of separation from service, and is not otherwise related to the Veteran's active service.  

2.  An unappealed February 2002 rating decision denied service connection for a bilateral shoulder disability on the basis that the evidence did not show that the shoulder disability began in or was caused by military service, or had existed continuously since separation.  

3.  Additional evidence received since the February 2002 decision, which denied entitlement to service connection for left shoulder disability, is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of service connection for left shoulder disability.  

4.  The Veteran does not have one nonservice-connected disability ratable at 60 percent or more, or a single disability rated at 40 percent or more with additional nonservice-connected disabilities to bring the combined rating to 70 percent or more.  

5.  The Veteran's disabilities are not productive of total disability and are not sufficient to preclude the average person from following a substantially gainful position.  

6.  The Veteran is not unemployable by reason of disability, age, education, and occupational history.  


CONCLUSIONS OF LAW

1.  Hypertension did not manifest during service or within one-year thereafter and has not been shown to be causally or etiologically related to the Veteran's military service.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  The February 2002 rating decision which denied service connection for left shoulder disability is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2012).  

3.  The evidence received subsequent to the February 2002 rating decision is new and material, and the previously denied claim for service connection for left shoulder disability is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).  

4.  The criteria for a permanent and total disability evaluation for pension purposes have not been met.  38 U.S.C.A. §§ 1501, 1502, 1521, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.342, 4.3, 4.7, 4.15, 4.17 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  

The Veteran is seeking to reopen a previously denied service connection claim.  The Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claim.  This is so because the Board is taking action favorable to the Veteran by reopening his service connection claim.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

With regard to the Veteran's claims seeking service connection for hypertension and entitlement to nonservice-connected pension benefits, in August 2007, a VCAA letter was issued to the Veteran with regard to both these issues.  The letter notified the Veteran of what information and evidence is needed to substantiate his claims, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date.  Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any 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.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

The Board also finds that VA has complied with all assistance provisions of VCAA.  The evidence of record contains the Veteran's service treatment records, post-service VA treatment records, and lay statements from the Veteran.  There is no indication of relevant, outstanding records which would support the Veteran's claim.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  

In addition, the Veteran underwent a VA examination in connection with his hypertension claim in May 2008; the report of which is of record.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the Board finds that the VA examination obtained in this case is adequate, as it was predicated on a physical evaluation as well as consideration of the medical records in the Veteran's claims file and the Veteran's reported history.  The opinion considers all of the pertinent evidence of record, to include statements given by the Veteran at the time of the VA examination, and provides a complete rationale for the opinions stated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

The Board observes that additional VA medical records dated from August 2008 to September 2012 were associated with the Virtual VA claims file after the May 2008 examination and were not reviewed by the VA examiner.  Nevertheless, the Board notes that these records do not provide additional information that was not already of record at the time of the VA examination.  Specifically, these records do not address the question asked of the VA examiner, i.e., whether the Veteran's current hypertension manifested during, or as a result of, active military service.  Rather, these records provide detailed information as to the Veteran's current condition, and treatment he is receiving to help control his blood sugar levels.  Therefore, the Board finds that these records do not provide additional information that is pertinent to the matter and a remand is not necessary for the examiner to review them in their entirety.  

The Veteran was also afforded a VA examination in connection with his claim for nonservice-connected pension benefits in February 2012.  The Board finds that the examination was thorough in nature and adequate for the purposes of deciding this claim.  The report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered appropriate diagnoses and opinions consistent with the evidence of record.  Of significance is that the Veteran has not raised questions about the adequacy of the examination.  

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the bilateral hearing loss issue in appellate status.

II.  Analysis

A.  Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Where the Board is presented with conflicting medical evidence, it is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  In this regard, the Board notes that the Federal Circuit and the Court have both specifically rejected the "treating physician rule."  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Instead, in Guerrieri, the Court offered guidance on the assessment of the probative value of medical opinion evidence.  The Court instructed that it should be based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical opinion that the physician reaches.  Id. at 470-71; see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (Board favoring one medical opinion over another is not error).  

The Veteran contends that his hypertension arose during service.  The Board notes that the term hypertension refers to persistently high arterial blood pressure.  Medical authorities have suggested various thresholds ranging from 140 mm. Hg systolic and from 90 mm. Hg diastolic.  See Dorland's Illustrated Medical Dictionary 909 (31st ed. 2007).  Similarly, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater.  The term isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.  See 38 C.F.R. § 4.104, Code 7101, Note 1 (2012).  

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for hypertension.  In the July 1987 enlistment examination, the Veteran was shown to have a blood pressure reading of 130/76, and he denied a history of high or low blood pressure in his report of medical history.  In November 1989, the Veteran presented at the primary care clinic with complaints of a chest cold.  A preliminary physical evaluation revealed a blood pressure reading of 160/100 and he was assessed with bronchitis and elevated blood pressure.  A November 1990 Dental Patient Medical history form reflects the Veteran's notation that he had high blood pressure, and an undated chronological record of medical care reflects that after undergoing physical evaluation prior to participating in a football game, the Veteran's blood pressure reading was shown to be 147/79, and he was assessed with elevated blood pressure.  While the Veteran reported a history of high or low blood pressure in the medical history report associated with his February 1991 separation examination, in the Physician's summary and elaboration of all pertinent data section, the medical examiner acknowledged this notation, and noted that the Veteran's blood pressure readings were within normal limits at this examination.  As will be discussed further in the decision, while the above-referenced findings reflect an elevation of blood pressure readings in some circumstances, they do not constitute hypertension as there is no actual diagnosis of hypertension.  Indeed, other than the above-referenced readings, the remainder of the Veteran's service treatment records is clear of any treatment for or diagnosis of elevated blood pressure readings.  Furthermore, the medical examination at the Veteran's separation examination indicated that the Veteran's blood pressure was within normal limits

Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent or more within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012).  The medical evidence of record does not show that the Veteran sought treatment for hypertension immediately following his period of service or for several years thereafter.  Therefore, the Board finds that hypertension did not manifest in service or within one year thereafter.  

Indeed, the Board further observes that the post-service record is negative for any findings of complaints, treatment or diagnosis of hypertension until over a decade after service.  In fact, the first post-service record pertaining to the Veteran's hypertension is a VA treatment report dated in September 2003, at which time, the Veteran's blood pressure reading was shown to be 145/97, and he was assessed with hypertension.  He was thereafter placed on medication to control his blood pressure, and subsequent VA treatment records issued at the VA Medical Centers (VAMCs) in San Antonio and Waco, Texas, and dated from September 2003 to September 2012, reflect ongoing supervision of, and treatment for the Veteran's hypertension.  Tellingly, at no point during any of these treatment visits did the Veteran claim that his hypertension originated or was diagnosed in service.  Moreover, a number of these records reflect the Veteran's family history of heart disease and hypertension.  Indeed, treatment records dated in January and March 2006 reflect a family history of coronary artery disease, and a February 2006 treatment note reflects that the Veteran's mother also has hypertension.  

A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection.  Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).  In this regard, the evidence of record indicates that there was no diagnosis of hypertension until many years after service.  Thus, the evidence of record indicates that hypertension did not manifest until nearly twelve years after the Veteran's separation from service.  

The Veteran was afforded a VA examination in May 2008, at which time, he reported headaches, blurred vision and chronic lethargy - symptoms he associated with his hypertension.  Upon physical examination, the examiner described the Veteran as a well-developed, well-nourished adult male in no acute distress, and noted that his blood pressure readings were shown to be 145/89, 143/85, and 153/93.  Based on his review of the claims file as well as his evaluation of the Veteran, the examiner diagnosed the Veteran with hypertension and determined that said disorder was neither caused by, nor related to, his military service.  According to the examiner, "[h]ypertension is a chronic condition that is usually life long" and "[b]lood pressure...can be elevated for any number of reasons ranging from stress to sudden stopping of heavy alcohol consumption."  The examiner further explained that episodic readings of elevated blood pressure, as reflected in the service treatment records, are not synonymous with hypertension.  As maintained by the examiner, the Veteran did not have a diagnosis of hypertension at the time of his discharge and went many years after his separation before he was diagnosed with hypertension in 2003.  

The Veteran was also afforded a general VA examination in connection to his claim for nonservice-connected pension benefits.  During the examination, the Veteran reported to have been diagnosed with hypertension in 1995.  According to the Veteran, he is currently on anti-hypertensive medication and his blood pressure is controlled to a fair degree with no side effects.  

In this case, the Veteran clearly has a current diagnosis of hypertension and his service treatment records reflect periodic episodes of elevated blood pressure readings.  The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service, to include the in-service elevated blood pressure readings.  

Based on the evidence of record, the Board finds the May 2008 VA medical opinion to be highly probative, as it is based on a discussion with the Veteran regarding his medical history and current condition, a review of the medical records, and a complete physical examination.  In addition, the examiner offered a thorough rationale for the opinion reached that is supported by the evidence of record.  
Furthermore, in reviewing the Veteran's medical records, the examiner specifically noted that the Veteran was not diagnosed with hypertension until 2003, twelve years after his discharge.  The examiner acknowledged the Veteran's service treatment records which revealed periodic episodes of elevated blood pressure readings, and provided an explanation as to how isolated episodes of elevated blood pressure come about, and why these episodes did not translate to an actual diagnosis of hypertension.  The examiner further noted that the Veteran did not have a diagnosis of hypertension at the time of his separation.  Thus, in this case, when weighing the evidence of record, the Board finds the medical opinion of the May 2008 VA examiner more probative on the question of medical nexus with respect to any relationship between the Veteran's current disability and his active military service.  In so finding, the Board reiterates that the VA examiner's opinion was based on a complete review of the claims file, the Veteran's reported history, and a clinical evaluation.  

In assigning greater probative value to the VA examination report, the Board has not ignored the Veteran's lay statements linking his current disability to his active service.  However, there is no indication in the record that the Veteran is a physician or other health care professional.  The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. §1153(a); 38 C.F.R. §3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where no corroborated by contemporaneous medical evidence).  For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  

Competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1371, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  However, in this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion as to whether his hypertension is related to active service.  

Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, hypertension is not a condition capable of lay diagnosis, although its symptoms might be described by a lay person, nor is it the type of condition that can be causally related to military service without medical expertise.  Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372.  Thus, the Board concludes that, although the Veteran is competent to report symptoms he experienced while in service and after service, his statements as to the onset or origin of hypertension and whether he was misdiagnosed in service do not constitute competent evidence.  As a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding such matters.  Espiritu V. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that matters involving special experience or special knowledge require the opinions of witnesses skilled in that particular science, art, or trade).  Therefore, the Veteran's statements regarding whether he had hypertension in service and his statements regarding the etiology of his hypertension are not competent evidence.  

In Savage v. Gober, 10 Vet. App. 488 (1997), the Court noted that, while the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, in a merits context, the lack of evidence of treatment may bear upon the credibility of the evidence of continuity.  The Board notes that it may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints of or treatment for the relevant condition or symptoms.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37.  Notwithstanding that fact, the lack of contemporaneous medical records is something that the Board can consider and weigh against a Veteran's lay evidence.  Id.  

Even if the Veteran's contentions could be read as claiming continuity of symptomatology since service, the medical evidence of record discloses twelve years from the time the Veteran separated from service and the first evidence of record indicating treatment for and a diagnosis of hypertension.  The Board acknowledges February 2012 VA examination wherein the Veteran stated that he was first diagnosed with hypertension in 1995.  However, a review of the post-service objective medical evidence of record is clear for a definitive diagnosis of hypertension until 2003.  In any event, in the absence of any objective evidence to support his complaints of continuity of symptomatology in the years since service, the initial demonstration of the disability at issue either four or twelve years after service is too remote from service to be reasonably related to service and diminishes the reliability of the Veteran's current recollections.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim).  Moreover, as previously discussed above, the Veteran never related his hypertension to, or claimed to have experienced symptoms of hypertension since, his military service during his post-service treatment visits.  Significantly, the May 2008 VA examiner specifically concluded that no currently diagnosed hypertension had its onset in service, or is otherwise casually or etiologically related to a disease or injury incurred in service.  This medical opinion is unrefuted by competent and credible evidence.  

Therefore, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply.  See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the Board concludes that service connection for hypertension is not warranted.

B.  New and Material

Generally, an unappealed Board denial is final under 38 U.S.C.A. § 7104 and an unappealed RO denial is final under 38 U.S.C.A. § 7105, and the claim may only be reopened through the receipt of "new and material" evidence.  If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition.  38 U.S.C.A. § 5108. See Hodge v. West, 155 F.3d 1356, 1362  (Fed. Cir. 1998).  

The regulation applicable to his appeal provides that new and 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.  38 C.F.R. § 3.156(a).  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.  Id.  

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness.).  

The Veteran claims that he injured his left shoulder during a football game in service and relates his current left shoulder disability to this in-service occurrence.  

He first filed a claim for service connection for the bilateral shoulder disability in October 2001.  He submitted his application for compensation benefits and his service treatment records in support of this claim.  While the service treatment records are clear for any signs or complaints of left shoulder pain, an undated chronological record of medical care reflects that the Veteran underwent a physical evaluation in service in preparation for a football game he planned to participate in.  

In the February 2002 rating decision, the RO noted that the service treatment records were negative for any findings, diagnosis, or treatment for shoulder disability, and denied entitlement to service connection on the basis that the bilateral shoulder disability neither occurred in, nor was caused by service.  The Veteran was notified of this decision and of his appellate rights; however, he did not submit a notice of disagreement for this decision.  In general, rating decisions that are not timely appealed are final.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  

The evidence associated with the claims file subsequent to the February 2002 decision includes, but is not limited to VA treatment records dated from October 1998 to September 2012; the May 2008 VA examination report; the February 2012 VA examination report; and the Veteran's own lay assertions.  

In November 2006, the Veteran filed a claim to reopen entitlement to service connection for the left shoulder disability.  

A February 2002 VA treatment report reflects complaints of shoulder pain of one year duration.  The Veteran presented at the VAMC again in September 2003 with complaints of pain in his left shoulder and knee.  On a scale of one to ten (with one being the least level of pain and ten being the highest) the Veteran rated his left shoulder pain at a six.  The treatment provider noted that the Veteran's pain was chronic in nature and suggested switching him to a different type of medication.  

The remainder of the Veteran's VA treatment records reflect ongoing treatment and care for the left shoulder symptoms.  In September 2006, the Veteran presented at the San Antonio VAMC with complaints of left shoulder pain after his shoulder was struck by a tree limb.  During an October 2003 orthopedic surgery consultation, the Veteran reported a history of pain, instability and limited motion in his left shoulder and noted that the pain had worsened in the last three weeks after a tree limb fell on his shoulder.  The Veteran complained of ongoing pain and added that the pain worsened with elevation and rotation of the shoulder.  He subsequently underwent a left shoulder hemiarthroplasty in March 2007.  During a March 2008 VA treatment visit, the Veteran provided his medical history, and reported a history of chronic pain primarily in the left shoulder since dislocating it in the early nineties.  The Veteran also discussed the fact that his left shoulder was struck by a tree branch in 2006, and despite undergoing a left shoulder hemiarthroplasty, he still had pain in his left shoulder.  

In his August 2009 substantive appeal, the Veteran stated that he dislocated his shoulder after participating in a game of football in service.  The Veteran further reported a history of ongoing pain and discomfort in his left shoulder that made it difficult for him to work or lift things.  Based on the Veteran's contentions, he appears to be relaying a history of pain and discomfort in the left shoulder since this in-service injury.  

Given the nature of the Veteran's condition and its observable symptoms, the Board finds that the Veteran is competent to report that he was injured in service and has suffered pain in left shoulder since service.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In addition, based on the evidence submitted and lay statements provided in support of his claim, the Board finds the Veteran credible with respect to his assertions.  

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus.  In reaching this conclusion, the Court reaffirmed the notion that a Veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it.  See Davidson v. Shinseki, 581 F.3d 1313, 1315-6 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377  (2007).  

With these considerations, the Board has reviewed the record, with particular attention to the additional evidence received since the February 2002 rating decision.  After reviewing the record, the Board finds that the additional evidence received since the final rating decision is new and material within the meaning of 38 C.F.R. § 3.156(a).  The majority of this evidence is certainly new, in that it was not previously of record.  

In particular, the Board finds the Veteran's lay assertions to be new and material evidence within the provisions of 38 C.F.R. §3.156.  Indeed, the Veteran has stated on a number of occasions that he injured his left shoulder in service, and that his current left shoulder disability is related to this in-service injury.  In addition, the Veteran has described continuing symptoms of pain and discomfort in his left shoulder since service.  The Veteran's lay assertions of continuing problems and ongoing symptoms were not of record at the time of the February 2002 rating decision.  

The Veteran is competent and credible with respect to these assertions, and such statements relate to an unestablished fact necessary to substantiate the claim.  Thus, the Board finds that new and material evidence has been presented to reopen his previously denied claim for service connection for left shoulder disability.  This aspect of his appeal is, therefore, granted.  However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the underlying de novo claim for service connection for this disorder can be addressed.  

C.  Nonservice-connected Pension Benefits

The Veteran contends that he is unable to work due to his disabilities, to include his left shoulder disability, high blood pressure, cardiovascular problems, psychiatric problems, and gout.  See January 2007 claim.  Non service-connected pension benefits are payable to a veteran who served for ninety (90) days or more during a period of war, which is not in dispute here, and who was permanently and totally disabled due to nonservice-connected disabilities that are the not the result of his own willful misconduct.  38 U.S.C.A. § 1521; see also Dilles v. Brown, 5 Vet. App. 88, 89-90 (1993) and cases cited therein.  If a veteran's combined disability is less than 100 percent, he must be unemployable by reason of disability.  38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4, see also Brown v. Derwinski, 2 Vet. App. 444, 446 (1992).

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 3.321 (a), Part 4.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  

To be eligible for VA pension, the evidence of record must demonstrate that the Veteran is permanently and totally disabled for nonservice-connected disabilities that are the not the result of his own willful misconduct.  For the purposes of pension benefits, the person shall be considered to be permanently and totally disabled if such individual is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from (1) any disability which is sufficient to render it impossible for the average person to obtain a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or (2) any disease or disorder determined by the VA Secretary to be of such nature or extent as to justify a determination that persons suffering there from are permanently and totally disabled.  See 38 U.S.C.A. § 1501 (a); 38 C.F.R. §§ 3.340 (b), 4.15.  

One way for a veteran to be considered permanently and totally disabled for VA pension purposes is to satisfy the "average person" test.  38 U.S.C.A. § 1502 (a) and 38 C.F.R. § 4.15.  See Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992).  To meet this test, the Veteran must have lifetime disability which would render it impossible for the average person with the same disability to follow substantially gainful employment.  Considering  the nature and severity of his disability and the Veteran's work history and training, the Board does not find that he satisfies the criteria of this test. 

All veterans who are basically eligible for pension benefits and who are unable to secure or follow a substantially gainful occupation by reason of disabilities, which are likely to be permanent, shall be rated as permanently and totally disabled.  For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite.  When the percentage requirements are met, and the disabilities involved are rated permanent in nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure or follow substantially gainful employment for reason of such disability.  Prior employment or unemployment status is immaterial if in a judgment by a rating board the veteran's disabilities render him or her unemployable.  38 C.F.R. § 4.17.  

The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be rated at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring a combined rating to 70 percent or more.  See 38 C.F.R. § 4.16.  

Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the Rating Schedule, but is found to be unemployable for reason of his disabilities, age, occupational background, and other related factors, a permanent and total disability rating for pension purposes may be assigned on an extraschedular basis.  See 38 C.F.R. § 38 C.F.R. § 3.321 (b), 4.17 (b).  

The record reflects that the Veteran was born in August 1969, is 43 years old and completed all four years of high school.  In his January 2007 claim for nonservice-connected pension benefits, the Veteran indicated that his last form of employment was working as a certified nursing assistant at a nursing home from February 2005 to October 2005.  According to the Veteran, he earned a total of $7,000.00 that year.  The record reflects that from November 2005 through November 2006, and from February 2008 through July 2008, the Veteran worked and also received treatment at a rehabilitation facility designed to assist certain people find a way back into the workforce.  See January 2010 Application for Increased Compensation Based on Unemployability.  A VA Form 21-527, date stamped as having been received in September 2009, reflects that the Veteran more recently worked at a production company from August 2008 until March 2009, and reportedly earned a total of $5,761.91.  According to the Veteran, he was forced to quit this job due to his inability to perform certain tasks required as a result of his left shoulder disability.  

In a November 2008 letter, the VA Central Texas Veterans Health Care System informed the Veteran that the tentative offer of employment for the position of Laborer had been rescinded due to the Veteran's inability to successfully pass the Work Capacity Examination portion of the pre-employment physical examination for the position.  Essentially, the Veteran was deemed medically disqualified for this position.  

In the February 2010 VA Form 21-4192, the Veteran's former employer clarified that the Veteran worked at the production company from August 2008 through April 2009, and earned a total of $19,864.00 while employed there.  

In letters dated in November and December 2009, the Veteran described the difficulty he was experiencing obtaining and maintaining employment as a result of his physical and psychiatric disorders.  The Veteran also discussed undergoing partial shoulder replacement surgery in March 2007, and noted that physical therapy was not helping improve his symptoms.  VA treatment records dated from September 2003 to September 2012 reflect ongoing supervision of, and treatment and care for the Veteran's various health conditions, to include his hypertension, the left shoulder disability, heart disease, low back symptoms, depression, alcohol abuse, anxiety, hyperlipidemia, and gout.  As previously discussed in this decision, the medical records reflect that the Veteran underwent a left shoulder hemiarthroplasty in March 2007.  

The record also shows that the Veteran was incarcerated from November 2009 until April 2010.  

After his release, the Veteran continued to receive physical therapy for his left shoulder disability at the Waco VAMC.  He also began participating in a Compensated Work Therapy (CWT) program at the VA and an August 2010 Vocational Rehabilitation Treatment note reflects that he started his CWT job in the Engineering division in April 2010.  The Vocational Rehabilitation Specialist noted that the Veteran was receiving excellent evaluations from his CWT supervisor, and was a hard worker with "many landscaping skills" who was a "great addition to the grounds crew."  He (the specialist) also noted that the Veteran reported to feel good about himself and his progress and denied suicidal thoughts, plans or intent.  A February 2011 VA Vocational Rehabilitation Discharge Note reflects that the Veteran completed his CWT Engineering program and was hired on a permanent basis to work as a laundry worker at the Waco VAMC.  

At the February 2012 VA examination, the examiner reviewed the Veteran's claims file and noted that the Veteran had a past medical history of problems with his left shoulder, gout, hypertension, a heart disability, diabetes mellitus, and an Achilles tendon tear of the right foot with leg deformity.  During the examination, the Veteran provided his occupational history, and stated that he was currently working at the laundry department at the Waco VAMC.  With respect to the left shoulder disability, the examiner noted that the Veteran did not experience any swelling, locking, giving way, instability, or lack of endurance in the left shoulder which might affect his activities of daily living or his occupation.  Upon discussion of the Veteran's gout, the Veteran reported to have moderate pain in the great toe when walking fast.  However, it was noted that the Veteran's gout had no effect on his activities of daily living or his occupation.  With respect to his right Achilles tendon tear, the Veteran described "decreased right heel lift during ambulation" and reported to walk in a certain matter so to keep his right foot flat on the ground.  Based on the examiner's notations, the Veteran's Achilles tendon tear of the right foot with leg deformity had no effect on his activities of daily living or his occupation.  

With respect to the lumbar spine, the Veteran reported to experience a tingling sensation in the right shin and numbness in the right great toe during prolonged ambulation.  The examiner reviewed a lumbar spine magnetic resonance imaging (MRI) report, the findings of which revealed spinal stenosis at L4-5 and L5-S1.  According to the Veteran, he has to rest every three blocks when walking to relieve the tingling sensation in his lower leg and the numbness of the great toe.  The Veteran did not report a history of low back injuries or surgeries, and the examiner observed no reported symptoms other than "neurogenic claudication at every [three] block walking distance."  The Veteran further stated that he often leans over furniture for "intervertebral decompression" with prolonged standing.  The examiner noted that the Veteran was able to move around while fulfilling his occupational duties, and that his "neurogenic claudication" had a mild to moderate effect on his current occupation.  The examiner also took note of the Veteran's hypertension, heart disability, and diabetes mellitus.  According to the examiner, the Veteran was on medication for his hypertension, and his blood sugar was under control.  The Veteran did not report any cardiac complaints and the examiner noted that the November 2010 echocardiogram was shown to be normal.  The examiner further noted that the Veteran did not experience any complications arising from his diabetes mellitus.  

Upon physical examination, the examiner described the Veteran's posture and gait as normal, and noted that the Veteran did not exhibit any signs of a limp when walking  The Veteran's blood sugar readings were shown to be 178/116, 166/113 and 159/127.  When performing range of motion exercises in the lumbar spine, the Veteran was shown to have flexion to 90 degrees, extension and lateral flexion to 30 degrees, and rotation to 45 degrees.  Upon physical examination of the right and left shoulder, the Veteran was shown to have flexion and abduction to 180 degrees, internal and external rotation to 90 degrees; and extension and adduction to 50 degrees.  Physical examination of the feet and ankles revealed dorsiflexion to 20 degrees, plantar flexion to 45 degrees and inversion to 30 degrees.  Based on his assessment of the Veteran, the examiner did not indicate that any of the Veteran's disabilities were so severe as to preclude gainful employment.  

While the February 2012 VA examiner did not discuss the effect of the Veteran's psychiatric disability on his employability or on his ability to perform his occupational duties, the Board references the August 2010 Vocational Rehabilitation Treatment report wherein the specialist noted that the Veteran reported to feel good about himself and his progress and denied suicidal thoughts, plans or intent.  Indeed, in numerous statements submitted by the Veteran, he related his symptoms of depression and anxiety to his inability to find work.  See August 2009 substantive appeal and December 2009 Statement of Veteran.  The record reflects that the Veteran's ability to work, pay his expenses and provide for his family have helped alleviate some of these symptoms.  Furthermore, during a June 2010 treatment visit at the VA Mental Health Clinic, the Veteran reported that his psychiatric symptoms had improved, and added that he was starting to feel better with regard to his anxiety, depression and psychosis.  The treatment provider noted that the Veteran's mood was euthymic and his affect was congruent and appropriate to his thoughts.  She (the treatment provider) also assigned the Veteran a Global Assessment Functioning (GAF) scores of 55.  A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996).  As such, the evidence of record reflects that the Veteran's psychiatric symptoms are moderate in nature and not so severe as to preclude his ability to obtain and maintain employment.  

While the Veteran's more recent records reflect diagnoses of obstructive sleep apnea, hyperlipidemia and gastroesophageal reflux disease (GERD), there is nothing in record to suggest that said disorders, separately or together, preclude the Veteran from obtaining employment.  Nor do the records reflect that the above-referenced disorders affect the Veteran's ability to perform his current occupational duties as a laundry worker at the Waco VAMC.  

The RO has assigned a 30 percent disability rating for the Veteran's PTSD; a 30 percent disability rating for his depression and anxiety with stress; a 20 percent disability rating for the Veteran's bilateral shoulder disability; a 10 percent disability rating for the Achilles tendon tear of the right foot with leg deformity; a 10 percent disability rating for the Veteran's hypertension and a noncompensable disability rating for the Veteran's gout.  In addition, the combined rating of the nonservice-connected disabilities for pension purposes is 70 percent.

In this case, while the Veteran's disabilities would undoubtedly make his work more difficult, there is no convincing evidence to the effect that these disabilities prevent him from working.  The Veteran's work history and education reflect that he is qualified for an assortment of employable positions.  Further, there is nothing in the medical evidence which reflects that the Veteran's disabilities preclude him from securing and following substantially gainful employment, even when considering age, occupational background and other related factors.  Finally, and most significantly, the Veteran is currently employed, and has held the same job since February 2011.  

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a). According to the U.S. Census Bureau's Housing and Household Economics Statistics Division, the poverty threshold for one person under 65 years of age was $11,464.00 in 2022.

Indeed, the Veteran has never described his employment as marginal, nor is there anything in the record to reflect that the Veteran employment as a laundry worker at the Waco VAMC is marginal in nature.  If the Veteran earned close to $20,000.00 while working for only nine months at the production company (see February 2010 VA Form 21-4192), then the Board is inclined to believe that the Veteran's earned annual income as a laundry worker at the Waco VAMC exceeds the current poverty threshold established by the U.S. Department of Commerce.  

As such, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  


ORDER

Entitlement to service connection for hypertension is denied.  

New and material evidence having been received, the claim of entitlement to service connection for left shoulder disability is reopened, and, to this extent only, the appeal is granted.  

Entitlement to nonservice-connected pension benefits is denied.

REMAND

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

As previously discussed above, the Veteran maintains his current left shoulder disability was incurred in service.  Specifically, the Veteran contends that he dislocated his left shoulder during an in-service football game, and that he has experienced ongoing pain and discomfort in the left shoulder since this time.  While the service treatment records are clear for any complaints of, or treatment provided for a left shoulder disability, an undated chronological record of medical care reflects that the Veteran underwent a physical evaluation prior to participating in a football game.  The examination results were shown to be normal, and the Veteran's prior history was clear for any previous fractures, injuries or problems.  

The Veteran has relayed a history of ongoing shoulder pain since his reported in-service injury.  The Veteran's earlier post service treatment records reflect his complaints of left shoulder pain which, on a scale of one to ten, he rated at a six.  See September 2003 VA primary care note.  As previously noted above, the Veteran's left shoulder was struck by a tree branch in September 2006, and soon thereafter, the Veteran began seeking regular treatment for his left shoulder symptoms.  During an October 2006 Orthopedic Surgery Consultation, the Veteran reported a history of pain, instability and limited motion in his left shoulder and noted that the pain had worsened in the past three weeks after his shoulder was struck by a tree limb.  Despite undergoing a left shoulder hemiarthroplasty in March 2007, he (the Veteran) described a worsening of his left shoulder symptoms.  See August 2009 substantive appeal and November 2009 Statement of Veteran.  

The Veteran was afforded a VA general examination in connection with his claim for nonservice-connected pension benefits in February 2012, at which time he reported to have dislocated his left shoulder in service.  According to the Veteran, he began experiencing problems with his left shoulder after this incident, but did not seek medical treatment for it right away.  After the March 2007 surgery, the Veteran reported to experience stiffness, and a constant dull ache which increases whenever performing strenuous repetitive tasks or when the weather becomes cold.  

VA has a duty to obtain an adequate medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; and indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case.  38 U.S.C.A. § 5103A; 38 C.F.R. §3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Furthermore, if VA undertakes to provide a medical examination, the Board must ensure that such examination is adequate.  

Under the circumstances presented in this case, the Board finds that a VA medical examination and opinion is required.  As discussed above, the Board has determined that the statements of the Veteran to the effect that he injured his left shoulder during a football game in service are both competent and credible.  In addition, the undated service treatment record reflecting that the Veteran underwent a physical examination prior to participating in a football game lends additional support to the Veteran's claim that he injured his left shoulder during a football game in service.  Therefore, a medical examination is necessary to determine 1) whether the Veteran currently suffers from a left shoulder disability; and if so 2) whether the left shoulder disability is related to an in-service cause.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the nature and etiology of any left shoulder disorder present.  The claims folder and a copy of this remand must be made available to, and reviewed by, the examiner.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report.  Consideration should be given to the Veteran's history and particularly to any statements regarding continuity of symptoms since service.  

Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current left shoulder disorder and provide diagnoses for all identified disabilities.  The examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any left shoulder disorder had an onset in service or is otherwise related to the Veteran's military service.  In answering this question, the examiner should address the Veteran's assertions that he has experienced left shoulder symptoms since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since military service.  

Also, in answering this question, the examiner should specifically include a discussion as to whether any of the diagnosed disability(ies) is/are consistent with the Veteran's competent and credible assertions that he hurt his left shoulder while participating in a game of football in service.  The examiner should also comment as to whether any post-service injury(ies) discussed by the Veteran have contributed, or led, to the development of any of the diagnosed left shoulder disability(ies).  

If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion.  

2. After completing the above, readjudicate the issue on appeal.  If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.  

No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2012).  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 case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).  




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs