Citation Nr: 1319225 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-49 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence was received to reopen a claim for service connection for trigeminal neuralgia (claimed as pinched nerve in the mouth), and if so, whether service connection is warranted. 2. Entitlement to an initial disability rating in excess of 10 percent for recurrent and chronic sprain of the right ankle. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from February 1971 through January 1973, September 1973 through June 1978, and June 1978 through October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which declined to reopen the Veteran's claim for service connection for trigeminal neuralgia and granted service connection for recurrent and chronic sprain of the right ankle, effective from July 31, 2008. An initial disability rating of 10 percent was assigned for the right ankle disability. A timely Notice of Disagreement (NOD) was received from the Veteran in May 2009. After a Statement of the Case (SOC) was issued in November 2009, the Veteran perfected his appeal in December 2009, via VA Form 9 substantive appeal. The Veteran and his spouse testified during a September 2012 video conference hearing which they attended from the St. Petersburg RO. A transcript of this testimony is associated with the record. During the Veteran's hearing, the Board agreed to hold the evidentiary record in abeyance for 60 days to permit the Veteran and his representative to submit further treatment records. A waiver of review by the RO for all evidence received after the Veteran's hearing was noted on the record. Indeed, additional evidence was received from the Veteran and his representative, consisting of private hospital records from Memorial Hospital Pembroke dated December 2006 through November 2012; VA treatment records dated from August 2000 through August 2012; and copies of the Veteran's service personnel and service treatment records. Again, a written waiver of review of this evidence by the RO, which was validly executed pursuant to 38 CFR 20.1304(c) (2012), was received with this additional evidence. This evidence has been associated with the claims file and considered by the Board in connection with this appeal. The issues of the Veteran's entitlement to service connection for trigeminal neuralgia and to an initial disability rating in excess of 10 percent for recurrent and chronic sprain of the right ankle are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. An October 2006 rating decision declined to reopen the Veteran's claim for service connection for trigeminal neuralgia. The Veteran did not appeal that decision. 2. The evidence associated with the claims file since the RO's October 2006 rating decision, when considered with the evidence previously of record, relates directly to previously unestablished elements of the Veteran's claim of service connection for trigeminal neuralgia and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The additional evidence associated with the claims file since the RO's October 2006 rating decision is new and material, and the Veteran's claim for service connection for trigeminal neuralgia is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to the issue on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. II. Request to Reopen By way of procedure, the Veteran's original claim for service connection for trigeminal neuralgia (claimed by the Veteran as a pinched nerve), was received by VA in November 2003. This claim was denied in a May 2004 rating decision issued by the RO in Lincoln, Nebraska. As grounds for its decision, the RO determined that the evidence available at that time did not show either that the Veteran's trigeminal neuralgia occurred during service, or, that it was related in any way to his active duty service. The Veteran did not appeal the November 2003 decision. In June 2006, the Veteran sought to reopen his claim; however, did not submit any new or additional evidence in support of his request to reopen. In an October 2006 rating decision, the RO in St. Petersburg, Florida declined to reopen the Veteran's claim. The Veteran also did not appeal this decision. Hence, the RO's decision to deny reopening the Veteran's claim for service connection for trigeminal neuralgia is final under 38 C.F.R. § 7105. In July 2008, the Veteran filed the pending request to reopen his claim. As noted above, this request was also denied by the RO in an April 2009 rating decision. This time, a timely appeal was initiated and perfected by the Veteran. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f 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." Under 38 C.F.R. § 3.156(a), "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the October 2006 decision, the evidentiary record consisted of the Veteran's claims submissions; service treatment records; service personnel records treatment records from the VA Medical Center (VAMC) in Miami, Florida dated from August 2001 through February 2002; and treatment records from the VAMC in Omaha, Nebraska dated from June 2002 through October 2003. Since the October 2006 decision, VA has obtained additional evidence which includes additional lay assertions from the Veteran and his spouse expressed in the Veteran's claims submissions and during the September 2012 hearing; additional brief arguments prepared by his attorney; treatment records from the Omaha VAMC dated February 2002 through October 2003; treatment records from the Miami VAMC dated June 2008 through September 2008; March 2009 report from a VA examination of the Veteran's right ankle; and the aforementioned evidence received after the Veteran's hearing. This additional evidence includes VA treatment records dated through August 2012 which reflect that the Veteran has continued to be followed for facial pain associated with trigeminal neuralgia. In his hearing testimony, the Veteran testified that he began noticing facial pain in 1982, within six months from his separation from service, and attributed this pain to a wisdom tooth extraction that was performed during service in Germany. He testified further that he sought VA treatment at that time and that he has experienced chronic and worsening pain since that time. Overall, the Veteran asserted his belief that his current pain symptoms were the same as the pain symptoms which he experienced in 1982. Brief arguments received from the Veteran's attorney in September 2012 also assert that the Veteran was self-medicating for his pain symptoms during service with alcohol. Toward that end, as purported evidence that the Veteran's trigeminal neuralgia originated during service, the Veteran's attorney directs VA's attention to January 1982 service records which show that the Veteran had admitted himself for alcohol abuse treatment. Overall, and presuming the credibility of the Veteran's testimony and the allegations raised in his attorney's September 2012 brief, solely for the purpose of considering whether new and material evidence has been received, the current evidentiary record appears to raise the substantiate the Veteran's contention that he sustained trigeminal neuralgia during service and that he has experienced ongoing associated symptoms since that time. Hence, the Board finds that new and material evidence has been received. Accordingly, the Veteran's claim for service connection for a right ankle disorder is reopened. This claim will next be addressed by the Board on a de novo basis, an action that will not prejudice the Veteran in light of the ultimate outcome. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER New and material evidence has been received, and the Veteran's previously denied claim for service connection for trigeminal neuralgia is reopened. REMAND Having reopened the Veteran's claim for service connection for trigeminal neuralgia, the Board finds that additional development of the service connection claim is necessary. During his September 2012 hearing, the Veteran testified that he experienced facial pain during service following a wisdom tooth extraction that had been performed during service in Germany. He testified further that these pain symptoms continued through his separation from service in 1982 and that he sought initial post-service treatment in 1982 at the Miami VAMC. The Board notes that treatment records in the claims file from the Miami VAMC do not pertain to any treatment received by the Veteran before August 2000. Further, there is no indication that VA has made any efforts to date to obtain VA treatment records which pertain to treatment received by the Veteran at the Miami VAMC prior to that date. The Board emphasizes that records generated by VA facilities which may have an impact on the adjudication of a claim are considered as being within the constructive possession of VA adjudicators, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Under the circumstances, VA must undertake efforts to obtain the Veteran's VA treatment records from the Miami VAMC, for any treatment received by him from 1982 through August 2000, relevant to this issue. Also, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other private or VA treatment providers who have rendered treatment for his trigeminal neuralgia since August 2012. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. In doing so, VA must follow the current procedures for pursuing records from Federal facilities, which are prescribed in 38 C.F.R. § 3.159(c). The Veteran has yet to be afforded a VA examination to determine whether his trigeminal neuralgia began during service or is related in any other way to his active duty service. Given the Veteran's testimony that he began experiencing symptoms associated with trigeminal neuralgia during service and that those symptoms have continued since his separation from service in 1982, such an examination is warranted in this case. As such, the Veteran should be arranged to undergo a VA examination of his trigeminal neuralgia. 38 C.F.R. § 3.159(c)(4). Regarding the Veteran's claim for a disability rating in excess of 10 percent for recurrent and chronic sprain of the right ankle, VA examination to assess the severity of the right ankle disability was most recently performed in March 2009. During his hearing, the Veteran testified that he was testified that his ankle had become worse since his April 2009 VA examination and that he was limited in his standing and walking due to his ankle pain. He also testified that he was required to wear a Ritchie ankle brace to improve the stability in his ankle. Indeed, VA treatment records since the April 2009 examination reflect ongoing complains of worsening right ankle pain, edema, decreased foot motion, and antalgic gait requiring the use of an ankle brace. VA treatment records from July 2010 reflect complains of arch pain and a corresponding diagnosis of plantar fasciitis. It is unclear from the record, however, as to whether the plantar fasciitis is a manifestation of the Veteran's service-connected right ankle disability. In instances where a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the veteran's current condition, VA's duty to assist includes providing him with a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Here, the evidence outlined above appears to suggest that there has been some worsening of the Veteran's right ankle disability since his April 2009 examination. Under the circumstances, the Veteran should be arranged to undergo a new VA examination of his right ankle to determine all manifestations resulting from his service-connected recurrent and chronic sprain of the right ankle and their severity. 38 C.F.R. § 3.159(c)(4). Prior to arranging the VA ankle examination requested above, and in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other private or VA treatment providers who have rendered treatment for his right ankle since August 2012. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, that he may submit or identify any additional evidence regarding his claims of entitlement to service connection for trigeminal neuralgia and to an initial disability rating in excess of 10 percent for recurrent and chronic sprain of the right ankle. This letter must also inform the Veteran about the type of information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to locate VA treatment records from 1982 through August 2000 from the Miami VAMC and to arrange VA examinations of his trigeminal neuralgia and right ankle. The Veteran should be advised that it is his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his trigeminal neuralgia and right ankle since August 2012. 2. Make efforts to obtain records from the Miami VAMC which pertain to treatment received by the Veteran from 1982 through August 2000 relevant to his claimed trigeminal neuralgia, as well as the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of the Veteran's current trigeminal neuralgia. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should provide a diagnosis pertinent to the claimed trigeminal neuralgia. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e. is at least a 50 percent probability) that any diagnosed disorders are related to an injury or illness sustained during service, to include the Veteran's reported second wisdom tooth extraction that was performed during service in Germany. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. The Veteran should also be afforded a VA examination, with an appropriate examiner, to determine all pathologies that are attributable to the Veteran's service-connected right ankle recurrent and chronic sprains and, the current severity of the Veteran's right ankle disability and any manifestations thereof. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All tests and studies, to include range of motion testing of the right foot, x-rays, neurological testing, vascular testing, and any other testing deemed necessary by the examiner, should be performed. The examiner should identify all pathologies that are related to the Veteran's service-connected recurrent and chronic sprains in the right ankle. The examiner should also provide an opinion as to whether the right foot plantar fasciitis diagnosed during VA treatment in 2010 is related in any way to his service-connected recurrent and chronic right ankle sprains. Finally, the examiner should provide an opinion as to the severity of the Veteran's service-connected right ankle disability and the severity of any pathologies that have been associated with the service-connected right ankle disability. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 6. After completion of the above development, the issues of the Veteran's entitlement to service connection for trigeminal neuralgia and to an initial disability rating in excess of 10 percent for recurrent and chronic sprain of the right ankle should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs