Citation Nr: 1329529 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-27 611 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a right leg disorder. 2. Entitlement to service connection for a right leg disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from May 1968 to May 1971. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision by the RO. The Veteran was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) in September 2010. He failed to report for this hearing. The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2012). One issue previously on appeal, service connection for a back disorder, was granted by the RO in a March 2010 rating decision. The Veteran has not disagreed with that decision or the assigned effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Accordingly, the issue is no longer in appellate status. As will be discussed, the Board finds that new and material evidence to reopen the previously denied claim for service connection for a right leg disorder has been received. The reopened claim of service connection is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In an unappealed April 2008 rating decision, the RO continued the denial of service connection for a right leg disorder; the Veteran was notified of this action and apprised of his appellate rights, but did not file a timely appeal. 2. The evidence associated with the claims folder since the April 2008 rating decision, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for a right leg disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As the Board's determination represents a grant of the petition to reopen, a discussion of VCAA is not required at this time. In view of the outcome, any deficiencies in such notice or assistance have not prejudiced the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds Mayfield v. Nicholson, 444 F.3d. 1328 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). II. Law and Regulations In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156(a) (2012). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). III. Analysis The Veteran was originally denied service connection for a right leg disorder in an October 2004 rating decision. He was notified of this decision and of his appeal rights, but did not initiate an appeal of that denial. Further, no new and material evidence was received within one year of this decision. Thereafter, in October 2007, the Veteran attempted to reopen his previously denied claim. That issue was denied in an April 2008 rating decision. The Veteran was notified of this decision and of his appeal rights in an April 17, 2008 letter, but did not initiate disagreement with this decision within one year. Moreover, no new and material evidence was associated with the claims file within one year of the RO's decision. When the Veteran's claim of service connection for a right leg disorder was denied in April 2008, the record contained the Veteran's service treatment records, VA treatment records, excerpts of his service personnel records and his lay statements. Based on this evidence, the RO denied the Veteran's claim because "there ha[d] been no evidence submitted that show[ed] treatment or a diagnosis of a right leg condition" and "there ha[d] been no ... evidence submitted that would indicate a link between [an] in-service event and a right leg disability." As explained, the Veteran's claim of service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally received evidence (i.e., since April 2008) raises a reasonable possibility of substantiating the Veteran's claim. The evidence associated with the Veteran's claims folder since the April 2008 rating decision includes VA treatment records, VA examination reports, the Veteran's complete service personnel file and his lay statements. As an initial matter, the Board notes that the Veteran's recently received service personnel records are not relevant to his claim because they do not establish the existence of a current disability, describe an in-service injury, or suggest that any diagnosed disability is related to the Veteran's active duty service. As a result, the Board concludes that reconsideration is not warranted. See 38 C.F.R. § 3.156(c). The Board notes, however, that the VA treatment records associated with the Veteran's claims file include a "problem list" which describes shrapnel wounds of the leg from Vietnam. See an October 2008 treatment record. This evidence is "new" in that it was not of record at the time of the April 2008 denial. The evidence is also "material" because it relates to an unestablished fact necessary to substantiate the claim, namely, that the Veteran's has a current disability. The Veteran's claim was previously denied, in part, because there was no evidence of a current disability. As noted, there is now evidence that indicates that the Veteran has been diagnosed with residuals of a shrapnel injury to the right leg. Obviously, this evidence is new in that it was not previously of record. Moreover, this evidence relates to an unestablished fact necessary to substantiate his claim. For these reasons, the Board finds that the evidence received since April 2008 is sufficient to reopen the Veteran's claim of service connection for a right leg disorder, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). ORDER As new and material evidence has been received to reopen the claim of service connection for a right leg disorder, the appeal to this extent is allowed, subject further to action as discussed hereinbelow. REMAND As discussed, the claim of service connection for a right leg disorder is reopened based on the receipt of new and material evidence. However, before addressing the merits of the claim, the Board finds that additional development is required. The Veteran has reported that in November 1969, while stationed with the 5th artillery battalion, he was injured when a rocket exploded while he was part of a convoy. See a February 2010 VA examination report. He further indicated that he "spent two weeks in a field hospital tent" following this injury. See an October 2007 statement. An attempt should be made to obtain morning reports of the 5th Artillery Battalion for November 1969. An attempt should also be made to obtain any in-service hospitalization treatment records that may be available following the Veteran's injury. As noted, the Veteran alleges that he has a right leg disability as a result of in-service shrapnel wounds. His VA treatment records now list "shrapnel wounds" on his "problem list." Under these circumstances, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and likely etiology of the claimed right leg disorder. See McLendon v. Nicholson, 20 Vet.App. 79 (2006). The record also indicates that the Veteran has been receiving ongoing VA treatment. On remand, copies of the Veteran's treatment records should be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the reopened claim is REMANDED for the following action: 1. The RO must assure that all notice and development required by VCAA has been accomplished, to include providing the Veteran with a VCAA notice letter which informs him of what the evidence must show to establish service connection for a right leg disorder. This letter must also inform the Veteran of his, and VA's respective duties for obtaining evidence. 2. The RO should take appropriate steps to contact the Veteran and ask him to identify the names and addresses of all VA and non-VA health care providers who have treated him for his right leg disorder since service. After procuring authorization from the Veteran for release of all identified records, as appropriate, the RO should obtain copies of all such records from any identified treatment source. The RO should also obtain any ongoing treatment records from the VAMC. 3. The RO should take all indicated action to contact the National Personnel Records Center (NPRC), and/or any other appropriate repository of records, and attempt to obtain morning/sick reports showing that the Veteran was injured in a rocket attack while assigned to the 5th Artillery Battalion while stationed in Vietnam in November 1969. The RO should also request that the NPRC and/or any other appropriate repository of records attempt to obtain copies of any hospitalization or treatment records from November 2, 1969 to November 16, 1969. The RO should provide as much detail as possible to aid in any search for records, including that the Veteran was assigned to the 5th Artillery Battalion at the time of his injury and that he was hospitalized in a field hospital in the Republic of Vietnam. All efforts to obtain such records should be documented in the claims file. 4. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed right leg disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including his service treatment records, post-service medical records, and lay statements. The examiner should identify all current right leg disability. For each diagnosis, the examiner should opine whether it is at least as likely as not that the current disability is due to an injury or other event or incident of his period of active service. In so doing, he or she should specifically address whether the disability is related to the Veteran's claimed in-service shrapnel injury. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. 5. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 claim 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs