Citation Nr: 1334856 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-16 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for residuals of a left hip injury. 2. Entitlement to service connection for residuals of a left hip injury. 3. Whether new and material evidence has been received to reopen service connection for urethritis, pyelonephritis, and trigonitis, and contracture of bladder neck (a urinary system disability). 4. Entitlement to service connection for a urinary system disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and his spouse ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1960 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2012, the Veteran and his spouse testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of whether clear and unmistakable error is present in a January 10, 2003 rating decision that denied service connection for residuals of a left hip injury has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of service connection for residuals of a left hip injury and a urinary system disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In a January 2003 rating decision, the RO denied service connection for a left hip injury. The Veteran did not file a timely appeal to this decision. 2. Evidence received since the January 2003 rating decision is new and material regarding the issue of service connection for residuals of a left hip injury, as it contains evidence not previously considered that has some tendency to establish the Veteran's residuals of a left hip injury had onset in active service. 3. In a January 2003 rating decision, the RO denied reopening of service connection for urethritis, pyelonephritis, and trigonitis, and contracture of bladder neck. The Veteran did not file a timely appeal to this decision. 4. Evidence received since the January 2003 rating decision is new and material regarding the issue of service connection for a urinary system disability, as it contains evidence not previously considered that has some tendency to establish the Veteran's urinary system disability had onset in active service and is related to active service. CONCLUSIONS OF LAW 1. The January 2003 rating decision that denied service connection for residuals of a left hip injury became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. Evidence received since the January 2003 rating decision is new and material to reopen service connection for residuals of a left hip injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The January 2003 rating decision that denied reopening the claim of service connection for a urinary system disability became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 4. Evidence received since the January 2003 rating decision is new and material to reopen service connection for a urinary system disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The Court elaborated that, in response to an application to reopen, VA is required to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Veteran was provided notice in June 2010 regarding the date and bases of the previous denial of his claims for service connection for residuals of a left hip injury and a urinary system disability. The notice informed the Veteran of the basis for the prior denials of the claims, that there was no left hip injury in service and no currently diagnosed left hip disability (left hip injury claim) and no chronic residuals found of urethritis, pyelonephritis, and trigonitis upon separation from active service (urinary system disability claim). The Veteran was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claims; therefore, the June 2010 letter provided the notice required by the Kent decision. Subsequent to the notice, and prior to return of the case to the Board, the claim was readjudicated by the RO in a May 2011 statement of the case. With respect to the Veteran's claims decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. Moreover, there can be no prejudice to the Veteran in proceeding with the issues to reopen the claims on appeal because of the favorable nature of the Board's decision to reopen service connection. (The reopened claims are addressed in the Remand section of this Board decision.) Legal Criteria to Reopen Service Connection Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c),(d)(3); 38 C.F.R. § 20.1103. 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, VA 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Reopening of Service Connection for Residuals of a Left Hip Injury In the current claim on appeal, the Veteran seeks to reopen service connection for residuals of a left hip injury. In January 2003, the RO denied service connection for a left hip injury, and informed the Veteran of the decision in a correspondence dated that same month. The RO found that the Veteran did not have current residuals of a left hip injury and that there was no evidence of a left hip injury in service. The Veteran did not initiate an appeal of the January 2003 determination, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Since the last final disallowance of the claim in January 2003, recent evidentiary submissions have included VA medical treatment records and the Veteran and his spouse's testimony during the January 2012 Board hearing. Specifically, the Veteran testified that in approximately September 1963 he injured the left hip after a parachute jump accident, sought treatment at the Courthouse Bay Dispensary for the left hip injury, and has had left hip pain since the accident. See Hearing Transcript at 8-24. The Veteran also argued that the service treatment records from Courthouse Bay Dispensary at Camp Lejeune are not associated with the claims file. Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence to reopen service connection for residuals of a left hip injury has been received. The Board hearing testimony is new, in that it was not of record at the time of the prior final denial. It is not cumulative and redundant of evidence already of record, and is material, as it suggests that a left hip injury occurred in service and that the residuals of a left hip injury, manifested in pain, had onset in service. This evidence is material because it relates to the unestablished fact of an in-service injury that is necessary to substantiate the claim. Specifically, this evidence addresses, in part, the basis for the prior denial; that is, that the left hip injury was sustained in service and that the Veteran has a current left hip disability that was incurred in service. Indeed, the Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade, 24 Vet. App. at 117-18. Given this standard, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for residuals of a left hip injury. At the time of the January 2003 denial, VA had only the service treatment reports of record. The Veteran's testimony tends to establish that the Veteran sustained a left hip injury in service, suggesting that the Veteran's current left hip complaints had onset in service. For these reasons, the Board finds that the additional evidence received since the January 2003 decision is new and material to reopen service connection for residuals of a left hip injury. (The reopened claim is addressed in the Remand section below.) Reopening of Service Connection for a Urinary System Disability In the current claim on appeal, the Veteran seeks to reopen service connection for a urinary system disability (claimed as urethritis, pyelonephritis, and trigonitis, and contracture of bladder neck). In a July 1992 rating decision, service connection for a congenital urinary kidney disorder was denied on the basis that the Veteran did not have chronic residuals of urethritis, pyelonephritis, and trigonitis upon separation examination. In January 2003, the RO denied reopening service connection for urethritis, pyelonephritis, and trigonitis, and contracture of bladder neck, and informed the Veteran of the decision in a correspondence dated that same month. The RO found that new and material evidence had not been submitted and again found that the Veteran did not have chronic residuals of urethritis, pyelonephritis, and trigonitis upon separation examination. The Veteran did not initiate an appeal of the January 2003 determination, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Since the last final disallowance of the claim in January 2003, recent evidentiary submissions have included VA medical treatment records and the Veteran and his spouse's testimony during the January 2012 Board hearing. Specifically, the Veteran testified that in a Form DD 217-MC he was medically discharged for a kidney disability. See Hearing Transcript at 27. The Form DD 217-MC is not associated with the claims file. Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence to reopen service connection for a urinary system disability has been received. The Board hearing testimony is new, in that it was not of record at the time of the prior final denial. It is not cumulative and redundant of evidence already of record, and is material, as it suggests that the Veteran had a urinary system disability at the time of service separation. This evidence is material because it relates to the unestablished fact of an in-service injury that is necessary to substantiate the claim. Specifically, this evidence addresses, in part, the basis for the prior denial; that is, that the Veteran had a urinary system disability in service and that he had a urinary system disability upon separation from active service. Indeed, the Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade at 117-18. Given this standard, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for a urinary system disability. At the time of the January 2003 denial, VA had only the service treatment reports of record. The Veteran's testimony tends to establish that the Veteran had a urinary system disability at discharge from active service, suggesting that a urinary system disability had onset in service and is related to active service. For these reasons, the Board finds that the additional evidence received since the January 2003 decision is new and material to reopen service connection for a urinary system disability. (The reopened claim is addressed in the Remand section below.) ORDER New and material evidence having been received, the appeal to reopen service connection for residuals of a left hip injury is granted. New and material evidence having been received, the appeal to reopen service connection for a urinary system disability is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims of service connection for residuals of a left hip injury and a urinary system disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). As indicated above, the Veteran testified that he received treatment at the Courthouse Bay Dispensary at Camp Lejeune after a parachute accident for residuals of a left hip injury. Those treatment records are not associated with the claims file. Also, the Veteran testified that the Form DD 217-MC indicated discharge from active duty based on disability, specifically, a kidney disability. The Form DD 217-MC is also not associated with the claims file. VA's duty to assist includes obtaining relevant VA and private medical records when the existence and location of such records has been made known to VA. 38 U.S.C.A. § 5103A(b). The Board finds that a VA examination is necessary to assist in determining the nature and etiology of any current residuals of a left hip injury and a urinary system disability. VA must afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Court in McLendon v. Nicholson, 20 Vet. App. 79 (2006), provided further guidance, outlining that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. With respect to the need for an indication that a veteran's current disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, the Court stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a 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 to include symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. In this case, the Veteran has not been afforded a VA examination for the claimed residuals of a left hip injury and a urinary system disability. During the January 2012 Board hearing, the Veteran testified that, prior to the hospitalization in October 1963, he sustained a left hip injury due to a parachute accident and sought treatment from the Courthouse Bay Dispensary. See Hearing Transcript at 10. He also testified that he has had left hip pain since the in-service accident. Id. at 24. Service treatment records reflect hospitalization in October 1963 for urethritis, pyelonephritis, and trigonitis, and contracture of bladder neck. Post-service VA treatment records from September 2010 reveal the Veteran's anxiety about his kidney function. There, he reported that he had left nephritis in service and almost lost his kidney years ago. Based on the above and given that the claims are also remanded to obtain outstanding service treatment records (which the Veteran has contended reveal in-service treatment of a left hip injury) and an outstanding Form DD 217-MC, a VA examination is warranted to assist in determining the etiology of the residuals of a left hip injury and urinary system disability, if any. Accordingly, the issues of service connection for residuals of a left hip disability and service connection for a urinary system disability are REMANDED for the following action: 1. Obtain all outstanding service treatment records from the Courthouse Bay Dispensary at Camp Lejeune, particularly, prior to October 1963 that have not already been associated with the claims file. If such records are not available, associate the negative response with the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Contact the NPRC and/or any other appropriate service department, and request a copy of any outstanding service personnel records, specifically to include a Form DD 217-MC, if available. If such records are not available, associate the negative response with the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. After the above development has been completed, schedule the Veteran for a VA examination to assist in determining the nature and etiology of any current residuals of a left hip injury and urinary system disability, to include urethritis, pyelonephritis, and trigonitis, and contracture of bladder neck. Following a review of all relevant evidence from the claims file, an interview with the Veteran to obtain a complete medical history (to include any relevant in-service and post-service injuries/diseases of the left hip and urinary system), an examination, and any necessary testing, the examiner is asked to offer the following opinions: a) Does the Veteran have a current left hip disability? b) If the Veteran has a current left hip disability, is it as likely as not (a 50 percent or greater degree of probability) that residuals of a left hip injury began during service or were caused by an in-service parachute accident in September 1963? c) Does the Veteran have a current urinary system disability, to include but not limited to, urethritis, pyelonephritis, and trigonitis, and contracture of bladder neck? d) If the Veteran has a current urinary system disability, is it as least as likely as not (a 50 percent or greater degree of probability) that a urinary system disability began during service? In rendering the opinions requested in b) and d), the examiner should consider and address: 1) that the Veteran is competent to report on an injury to the left hip during active service as a result of a parachute accident, and that he sought treatment at the Courthouse Bay Dispensary for the left hip injury; 2) that the Veteran is competent to report the observable symptoms of left hip pain while on active duty and since that time even when his service treatment records are negative for symptoms of or a diagnosis of the disorder; and 3) that the Veteran is competent to report that he was told he was being discharged from active duty for a kidney disability. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to these claims. 4. After completion of the above and any additional development deemed necessary, the claims of service connection for residuals of a left hip injury and service connection for a urinary system disability should be readjudicated in light of all the evidence of record. If the determinations remain adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs