Citation Nr: 1324642 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 12-30 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a right eye disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tuberculosis, previously characterized as chronic granuloma (tuberculosis), and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, O. H.-P., E. L. H. ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran's service included service in the Philippine Guerrilla and Combination Service from March 1945 to February 1946, and with the Special Philippine Scouts from March 1946 to April 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2003 and December 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. Following the issuance of an August 2003 rating decision, which confirmed and continued a May 2003 denial of service connection for a right eye disorder, the Veteran filed a timely notice of disagreement in October 2003. The Veteran indicated that he was responding to the RO's May 2003 notice and that he believed and maintained that service connection for his right eye disability should be granted. He asked that all reasonable doubt be resolved in his favor. Liberally construing his statements, the document constitutes a notice of disagreement, therefore, the May 2003 decision is not final and new and material evidence is not required to reopen the claim. This record before the Board consists of paper claims files and an electronic file known as Virtual VA. In July 2013, the Veteran and his witnesses testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Virtual VA claims files. 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). The issues of service connection for right eye disability and tuberculosis, previously characterized as chronic granuloma (tuberculosis), addressed in the REMAND portion of the decision below are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT 1. The RO denied service connection for chronic granuloma (tuberculosis) in July 1973 and July 1974 rating decisions; the Veteran filed a notice of disagreement and a statement of the case was issued in August 1974. The Veteran did not perfect the appeal by filing a timely substantive appeal. 2. Newly submitted evidence includes evidence that is not cumulative or redundant of the evidence previously of record, addresses unestablished facts necessary to substantiate the claim, and raises the reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for tuberculosis, previously characterized as chronic granuloma (tuberculosis). 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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) recently 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); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis The Veteran's claim seeking service connection for tuberculosis was originally denied in a July 1973 rating decision because the evidence showed no injury or disability of this nature in service. It was undisputed that the Veteran had a right thigh granuloma (tuberculosis) as documented in 1968. The Veteran filed a notice of disagreement and additional evidence within one year and the RO thereafter issued another decision in August 1974. The RO noted that affidavits from comrades had been submitted describing the incurrence of the injury to the right thigh but that no service record corroborated the affidavits. The RO issued a statement of the case in August 1974 and informed the Veteran that a timely substantive appeal was required to perfect the appeal. The Veteran did not thereafter submit any additional documents to the RO until September 1980. The evidence received after the expiration of the appeal period includes medical records reflecting current pulmonary tuberculosis as reflected in his VA problems list noted in November 2010. Significantly, it also includes extensive information from the Veteran regarding the circumstances surrounding his service relevant to tuberculosis. He has submitted statements indicating that he suffered injury to the right thigh service when he was flung from a jeep onto a stump. This chronic wound was not treated in service although it was deemed severe by his comrades. He was later diagnosed with granuloma tuberculosis in 1968. Additionally, he testified that he was exposed to tuberculosis in the discharge of his duties and that he was among Japanese prisoners of war who virtually all had tuberculosis. Furthermore, he was exposed due to his interactions with his comrades. This new evidence, particularly the statements concerning exposure to tuberculosis in the discharge of his duties, is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claims. The credibility of this evidence is to be presumed for purposes of establishing whether new and material evidence has been submitted, it is not inherently incredible nor does it consist of statements that are beyond the competence of the Veteran. Accordingly, it is new and material and reopening of the claims is warranted. ORDER The Board having determined that new and material evidence has been submitted, reopening of the claim for service connection for tuberculosis, previously characterized as chronic granuloma (tuberculosis)is granted. REMAND The Veteran claims he has right eye disability and tuberculosis as a result of his combat service. There is current disability and the Veteran's statements and those of his comrades in support of his claim. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran has submitted statements indicating that he suffered an eye injury during service. He stated that he injured his eye while fighting in sugar cane fields during the war while he was serving as a scout. He described getting a shard of sugar cane in his eye and developing an ongoing eye problem that led to his implant years later. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the above considerations, a VA examination is necessary to ascertain the etiology of the right eye disability and tuberculosis present during the period of the claim. It is also noted that there appear to be outstanding records that are relevant to the claim. The Veteran reported treatment by B. Tanenbaum, M.D., Dr. Harrison, Dr. Aguilera, the Glendale Adventist Medical Center, and the Los Angeles VA Medical Center from 1994. While VA treatment records dating from 1999 have been associated with the claims folder, it does not appear that records dating from 1995 have been requested from the Los Angeles Medical Center. The Veteran also reported in his substantive appeal that he was treated by VA in the 1950s and 1960s. While a hospitalization discharge summary from 1968 is of record, the Veteran should be asked to clarify whether he received other treatment from VA prior to 1968 and if so at which facility or facilities. This should be accomplished on remand. In addition, the Veteran should be asked to authorize the release of records from the private facilities listed above as well as any records from UCLA pertaining to treatment of his eye disability. See VA treatment record dated in August 1999. Finally, it is noted that the accredited representative was going to submit evidence directly to the Board following the hearing in July 2013. As the evidence has not been received, the Veteran should be asked to submit the evidence. 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. Request that the Veteran authorize the release of any relevant medical records pertaining to the claims that have not yet been submitted, including the records of Dr. Tanenbaum, Dr. Harrison, Dr. Aguilera, UCLA, and Glendale Adventist Medical Center. Also, request that the Veteran clarify whether he was treated at VA facilities prior to his 1968 hospitalization and, if so, at which facility or facilities and what were the approximate dates of treatment. Request that the Veteran submit the evidence that was to be submitted to the Board after the July 2013 Board hearing. 2. Obtain VA treatment records pertaining to treatment of the Veteran at the Los Angeles VA Medical Center from 1994. Also attempt to obtain any additional VA records the Veteran identifies in response to step 1. 3. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. After steps 1 and 2 are complete, afford the Veteran an appropriate VA examination by an examiner with sufficient expertise with regard to his right eye disability claim. The claims folder must be made available to and reviewed by the examiner. With respect to each right eye disability present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the disorder is etiologically related to the Veteran's active service. In this regard, the Veteran credibly asserts that he sustained an injury when a shard of sugar cane went in his eye in service. He asserts that this eventually led to the implant. The rationale for all opinions expressed must be provided. For purposes of the examination, the Veteran should be considered a reliable historian. If any required opinion cannot be provided, the examiner should explain why. In particular, if an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After steps 1 and 2 are complete, schedule a VA examination with regard to his tuberculosis claim. The claims folder must be made available to and reviewed by the clinician. With respect to any tuberculosis, or residuals thereof, present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the disorder is etiologically related to the Veteran's active service. In this regard, the Veteran has reported that he was exposed to people who had tuberculosis during his World War II service. The rationale for all opinions expressed must be provided. For purposes of the opinion, the Veteran should be considered a reliable historian. If any required opinion cannot be provided, the examiner should explain why. In particular, if an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. The RO or the AMC should also undertake any other development it determines to be warranted. 7. Then, readjudicate the issues remaining on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response before returning the case to the Board for further appellate action. 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs