Citation Nr: 1320706	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  07-21 392	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disability, claimed as secondary to a service-connected disability, and if so, whether the reopened claim should be granted.

2.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right hip disability, claimed as secondary to a service-connected disability, and if so, whether the reopened claim should be granted.

3.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability, claimed as secondary to a service-connected disability, and if so, whether the reopened claim should be granted.

4.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability, claimed as secondary to a service-connected disability, and if so, whether the reopened claim should be granted.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel


INTRODUCTION

The Veteran served on active duty almost continuously from May 1959 to May 1967.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California that denied reopening the issues on appeal.  Jurisdiction over the case was subsequently transferred to the RO in San Diego, California.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2013.  A transcript of the hearing is associated with the claims file. 

The issues of entitlement to service connection for the disabilities on appeal are addressed in the Remand that follows the Order section of this decision.  The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a) (2) (West 2002).


FINDINGS OF FACT

1.  Service connection for left hip, right hip, right knee, and neck disabilities (cervical spine disability) was denied in a June 2004 rating decision that was not appealed. 

2.  Evidence received since the June 2004 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims.


CONCLUSION OF LAW

As new and material evidence has been received since the June 2004 decision, the criteria for reopening the claim for service connection for left hip, right hip, right knee, and cervical spine disabilities are met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 







REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed.  38 C.F.R. §§ 20.1100, 20.1103.  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence 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). 

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). 

Analysis

The Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claims for service connection.  This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis.  See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). 

Review of the file shows the RO denied service connection for the disabilities on appeal in June 2004 based on its determination that the disabilities were not shown to have either occurred in nor were caused by service.  The June 2004 decision was not appealed. 

The evidence received since the June 2004 decision includes in pertinent part the testimony provided by the Veteran in May 2013 as to the onset of his disabilities and why he believes they are related to his service-connected hallux valgus, postoperative total joint replacement, 1st MTP joint, left foot with excision, middle phalanges, 3rd and 4th toes, bilateral for hammertoe deformity (foot disability).

The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims.  Therefore, this evidence is new and material, and reopening of the claim is in order.  Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). 


ORDER

The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for left hip disability is granted. 

The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for right hip disability is granted. 

The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for right knee disability is granted. 

The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for cervical spine disability is granted. 


REMAND

The Board is of the opinion that additional development is required before the Veteran's claims are decided. 

The Veteran asserts that he is entitled to service connection for left hip disability, right hip disability, right knee disability, and cervical spine disability, to include as secondary to the service-connected foot disability.  Service connection is warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310.  The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995). 

Review of the claims file shows that the Veteran was afforded a VA-contracted examination for the disabilities on appeal in September 2012 in which the examiner generally opined that the hallux valgus (the service-connected foot disability) had no relationship to the cervical spine condition, bilateral hip condition, and right knee condition.  The examiner provided a conclusory rationale to support this opinion.  Moreover, the examiner did not offer an opinion as to whether the claimed disabilities were chronically worsened, or aggravated, by the Veteran's service-connected hallux valgus.  Under the circumstances, further VA examination is appropriate to obtain an opinion as to aggravation with a complete rationale.  

Finally, at his hearing before the undersigned, the Veteran testified that he had a letter from Dr. G. dated May 15, 2013, regarding the issues on appeal.  The Board notes that the claims file and Virtual VA file do not contain this letter.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO or the AMC should inform the Veteran that he should submit a copy of all available records, not already of record, pertaining to post-service treatment or evaluation of his bilateral hip, right knee, or cervical spine disabilities, or provide the RO or the AMC with the authorization necessary for the RO or the AMC to obtain a copy of the records on his behalf.

2.  Then, the RO or AMC should undertake appropriate development to obtain any outstanding medical records pertaining to treatment or evaluation of the Veteran's disabilities on appeal, to specifically include the May 15, 2013 letter from Dr. G.

3.  Following the above action, return the claims files and a separate copy of this remand to the September 2012 VA-contracted examiner for review.  

Based on the review of the record, the examiner should express an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently present left hip disability, right hip disability, right knee disability or cervical spine disability, is proximately due to, or aggravated by, the service-connected hallux valgus.  The term "aggravation" means a permanent worsening beyond the natural progression of the disability.  

A complete rationale must be given for any opinion expressed.  If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative.

If the September 2012 examiner is unavailable, the claims folder should be reviewed by another physician with appropriate expertise who should be requested to provide the required opinion with supporting rationale.  Another examination of the appellant should only be performed if deemed necessary by the person providing the opinion.

4.  Thereafter, readjudicate the issues on appeal.  If the desired benefits are not granted, a supplemental statement of the case should be furnished to the Veteran and his representative. The appropriate time within which to respond should also be afforded to the Veteran. The case should then be returned to the Board, if otherwise in order.

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 A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs