Citation Nr: 1336814 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 12-01 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for lymphoma. 2. Whether new and material evidence has been received to reopen a claim of service connection for rheumatoid arthritis. 3. Entitlement to a compensable rating for status post left pterygium excision with residual nasal peripheral corneal scarring and neovascularization (left eye disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1945 to February 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2010 and November 2011 rating decisions, which respectively continued a 0 percent rating for a left eye disability and declined to reopen a claim for service connection for rheumatoid arthritis. In September 2013 a videoconference hearing was held before the undersigned; a transcript is associated with the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for rheumatoid arthritis (on de novo review) and for a detached retina and cataracts and entitlement to a compensable rating for a left eye disability are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. In September 2013, prior to the promulgation of a Board decision in the matter of service connection for lymphoma, the Veteran requested a withdrawal of his appeal in the matter. 2. A February 2003 rating decision denied the Veteran service connection for rheumatoid arthritis based essentially on a finding that such disability was not shown to be related to his service. 3. Evidence received since the February 2003 rating decision includes evidence not of record at the time of that decision, suggests that the Veteran's rheumatoid arthritis may be related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for rheumatoid arthritis; and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal are met as to the Veteran's claim seeking service connection for lymphoma; the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C.A. §§ 7014, 7105(d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. New and material evidence has been received, and the claim of service connection for rheumatoid arthritis may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Given the Veteran's expression of intent to withdraw his appeal in the matter of service connection for lymphoma, discussion of the impact of the VCAA on this claim is not necessary. Regarding the claim to reopen, there is no need to belabor the impact of the VCAA, as any VCAA mandated duty omission is harmless (because this decision reopens the claim). Service connection, Lymphoma The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary. 38 U.S.C.A. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). During the September 2013 hearing the Veteran expressed his intent to withdraw his appeal seeking service connection for lymphoma. Under governing regulation an appellant can withdraw an appeal at any time prior to the Board's promulgation of a decision in the matter. Given the expression of intent to withdraw his appeal seeking service connection for lymphoma, there remains no allegation of error of fact or law with respect to this claim remaining for appellate consideration. Accordingly, the Board does not have jurisdiction to consider the appeal in this matter. New & Material Evidence, Rheumatoid Arthritis A February 2003 rating decision denied the Veteran's claim of service connection for rheumatoid arthritis based essentially on a finding that such disability was not shown to be related to his service. The Veteran was notified of that decision and did not timely file a notice of disagreement with that decision (or submit additional evidence within a year following). It became final based on the evidence of record at the time of the decision. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. Id. at 327. Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). 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. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evidence received since the February 2003 rating decision includes a medical opinion from the Veteran's treating rheumatologist, dated in October 2010, indicating that his rheumatoid arthritis may be related to service. This evidence was not of record in 2003, and is new. As it addresses the question of whether the Veteran's rheumatoid arthritis is related to service, it pertains to an unestablished fact necessary to substantiate the claim of service connection for rheumatoid arthritis, and raises a reasonable possibility of substantiating such claim. Consequently, particularly in light of the "low threshold" standard outlined by the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that the evidence is both new and material, and that the claim of service connection for rheumatoid arthritis may be reopened. De novo consideration of the claim is addressed in the remand below. ORDER The appeal seeking service connection for lymphoma is dismissed. The appeal seeking to reopen a claim of service connection for rheumatoid arthritis is granted. REMAND As the decision above reopens the Veteran's claim of service connection for rheumatoid arthritis, the analysis proceeds to de novo review of such claim. In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the Court held that where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the Veteran or no prejudice would result from adjudication of the claim. As the RO has not considered the Veteran's reopened claim of service connection for rheumatoid arthritis in the first instance, and he has not waived his right to such consideration, the Board finds that a remand for such purpose is necessary. Notably, also, the Veteran has not been afforded a VA examination in connection with the claim of service connection for rheumatoid arthritis. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 to make a decision on the claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon the Court held that requirement (3), i.e., that a disability may be associated with service, is a "low threshold" requirement. As noted above, the Veteran submitted an opinion from his treating rheumatologist linking his rheumatoid arthritis to service. As there is evidence of a current diagnosis of rheumatoid arthritis and evidence that such disability may be associated with symptoms in service, the Board finds that the low threshold standard of McLendon is met and a medical opinion in this matter is necessary. The Veteran seeks an increased rating for his left eye disability alleging that it has developed to encompass cataracts and a detached retina. While technically this allegation raises new claims of service connection, as that is the basis for his claim for increase, the matter of service connection for detached retina and pterygium must be adjudicated as inextricably intertwined with the claim for an increased rating for the left eye disability. Accordingly, the case is REMANDED for the following: (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 should forward the Veteran's claims file to a rheumatologist for review and an advisory medical opinion regarding the etiology of the Veteran's rheumatoid arthritis. Based on review of the record, the consulting rheumatologist should provide an opinion that responds to the following: What is the most likely etiology for the Veteran's rheumatoid arthritis? Specifically, is it at least as likely as not (a 50 percent or greater probability) that such disability is related to the Veteran's service? The rheumatologist is asked to explain the rationale for the opinion in detail, citing to supporting factual data. The explanation should include comment on the October 2010 private medical opinion already in the record on this matter, expressing agreement or disagreement with the opinion, and the rationale for such. 2. The RO should fully develop and adjudicate the matters of service connection for a detached retina and cataracts (raised during his September 2013 Board hearing). The Veteran should be advised of the determination. If it is negative, he should further be advised that the Board does not yet have full jurisdiction in the matter, and will only have jurisdiction if he files a notice of disagreement in the matter, and then a substantive appeal after a statement of the case (SOC) is issued. 3. The RO should then review the record and undertake any other development suggested by the development ordered above. Thereafter, the RO should readjudicate the claim for a compensable rating for left eye disability and the claim for service connection for rheumatoid arthritis. If either remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs