Citation Nr: 1311137	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  10-22 196	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the postoperative residuals of Von Recklinghausen's neurofibromatosis, and if so, whether the claim should be granted. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Hannan, Counsel

INTRODUCTION

The Veteran served on active duty from August 1967 to September 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In February 2013, the Veteran presented testimony at a hearing conducted at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.  

The reopened claim for service connection for Von Recklinghausen's neurofibromatosis is addressed in the REMAND that follows the ORDER section of this decision. 


FINDINGS OF FACT

1.  A December 1971 Board decision denied entitlement to service connection for the postoperative residuals of Von Recklinghausen's neurofibromatosis. 

2.  The evidence received since the December 1971 Board decision includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claim. 


CONCLUSION OF LAW

New and material evidence has been received to reopen the claim for service connection for the postoperative residuals of Von Recklinghausen's neurofibromatosis.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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).  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.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996).

The Veteran originally submitted a claim for entitlement to service connection for the postoperative residuals of Von Recklinghausen's neurofibromatosis in September 1970.  The claim was denied in an October 1970 rating decision.  The Veteran appealed the October 1970 rating decision to the Board and the Board denied service connection for the postoperative residuals of Von Recklinghausen's neurofibromatosis in a decision issued in December 1971.  

The Board found that there was clear and unmistakable evidence that the Von Recklinghausen's neurofibromatosis existed prior to service and that there was no aggravation of the neurofibromatosis during service, including as a result of the in-service remedial surgeries.  The evidence of record in December 1971 included no medical evidence addressing whether the Veteran's Von Recklinghausen's neurofibromatosis had been aggravated in service or whether the in-service bone graft had generated any additional pathology.

The December 1971 Board decision could not be appealed.

The evidence added to the record since the December 1971 Board decision includes the Veteran's February 2013 hearing testimony that he experiences headaches triggered by neck pain that are related to changes in the temporalis muscle.  In addition, the report of a November 2008 VA CAT indicates that the Veteran's temporalis muscle on the left side is markedly more thickened than on the right side and that this finding could be caused by reconstructive post-surgical changes.  

This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim.  Therefore, the evidence is new and material and reopening of the claim is in order. 



ORDER

The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for the postoperative residuals of Von Recklinghausen's neurofibromatosis is granted. 


REMAND

Following a review of the record, the Board has determined that further development is required before the Veteran's claim for service connection for the postoperative residuals of Von Recklinghausen's neurofibromatosis is decided.

The Board acknowledges that the Veteran, as a lay person, is competent to report the existence of his headaches, problems with his left eye and left-sided facial pain.  See Layno v. Brown, 6 Vet. App. 465, 470(1994).  The clinical evidence of record indicates that the Veteran experiences headaches triggered by neck pain that are related to changes in the temporalis muscle and that the temporalis muscle on the left side is markedly more thickened than on the right side; this abnormality could be the result of reconstructive surgery.  

The Veteran has not been afforded a VA examination in connection with his claim.  There is a low threshold when determining whether a VA medical examination is to be provided or medical opinion obtained and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  See McLendon v. Nicholson, 20 Vet. App. 79(2006).  Based on the evidence in this case, the Board finds that an examination is required. 

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim.

2.  Then, arrange for the Veteran to be afforded a VA examination by an appropriate physician to determine the etiology of the Veteran's Von Recklinghausen's neurofibromatosis.

Any indicated tests and studies should be performed.  The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and be reviewed by the examiner in conjunction with the examination. 

Based on the review of the Veteran's pertinent history and the examination results the examiner should state an opinion as to whether the Veteran's Von Recklinghausen's neurofibromatosis clearly and unmistakably existed prior to service.

If the examiner is of the opinion that the disorder clearly and unmistakably existed prior to service, the examiner should provide an opinion as to whether the disorder clearly and unmistakably underwent no permanent increase in severity as a result of the Veteran's active service. 

A complete rationale must be provided for all opinions expressed.  The examiner should specifically address whether the in-service surgery was remedial in nature or whether it actually increased the overall level of disability.  If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why that opinion would require speculation. 

3.  Undertake any other indicated development.

4.  Then, adjudicate the reopened claim on a de novo basis.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.  

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or 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).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs