Citation Nr: 1410116 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-43 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for chronic venous insufficiency of the left leg. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for peptic ulcer disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to February 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and has subsequently been transferred to the Pittsburgh, Pennsylvania, RO. The issue of entitlement to service connection for prostate cancer was also denied by the RO in August 2009. The Veteran submitted a timely Notice of Disagreement to this issue and the issues identified above. The RO issued a Statement of the Case in October 2010. However, in the October 2010 Substantive Appeal, the Veteran stated he was only appealing the issue of entitlement to service connection for chronic venous insufficiency of the left leg and whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for peptic ulcer disease. As such, the issue of entitlement to service connection for prostate cancer is not before the Board for review. A hearing before the undersigned Veterans Law Judge was held at the RO in September 2011. A transcript of the hearing has been associated with the claims file. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. The request to reopen a previously denied claim of entitlement to service connection for peptic ulcer disease is granted herein, and the merits of the claim are addressed in the REMAND section of this decision. This issue is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. In September 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran of his desire to withdraw the appeal pertaining to his claim of entitlement to service connection for chronic venous insufficiency of the left leg. 2. An August 1981 rating decision denied the Veteran's original claim for entitlement to service connection for peptic ulcer disease. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 3. Evidence received since the August 1981 decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for peptic ulcer disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's substantive appeal from the denial of service connection for chronic venous insufficiency of the left leg have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The August 1981 rating decision denying entitlement to service connection for peptic ulcer disease is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 3. Since the August 1981 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for peptic ulcer disease. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Appeal The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.101 (2013). Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or on the record at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. As stated above, in September 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Veteran stated that he wished to withdraw the issue of entitlement service connection for chronic venous insufficiency of the left leg. Because this statement was later reduced to writing and incorporated into the record in the form of a written transcript, the transcript of that hearing has been accepted as the Veteran's withdrawal of the Substantive Appeal as to this issue. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The Veteran has withdrawn the appeal of this issue and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. As such, the Board does not have jurisdiction to review the appeal of the issue of entitlement to service connection for chronic venous insufficiency of the left leg, and it is dismissed. II. The Veterans Claims Assistance Act of 2000 VA has a statutory and regulatory 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) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), the veteran must be apprised as to the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence. Kent further requires that the notice inform the veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. In light of the favorable outcome of this appeal with respect to the issue of whether new and material evidence has been submitted to reopen the claim (reopening of the claim by the Board), any perceived lack of notice or development is not prejudicial. See 38 U.S.C.A. §§ 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). III. Merits of the Claim In general, unappealed RO and Board decisions are final. See 38 U.S.C.A. § 7104, 7105 (West 2002); 38 C.F.R. § 20.1100 (2013). Pursuant to 38 U.S.C.A. § 5108 (West 2002), 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. See 38 C.F.R. § 3.156(a) (2013). To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of evidence of record at the time of the last prior final disallowance and must prove merits of the claim as to each central element that was specified as a basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views 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." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."' As previously stated, the Veteran's claim for peptic ulcer disease was originally denied in an August 1981 RO decision which determined the Veteran's history of ulcers preexisted service and the evidence did not demonstrate aggravation. The Veteran did not appeal the decision. Therefore, the August 1981 Board decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2013). In March 2009, the Veteran submitted a request to reopen this claim. This resulted in the August 2009 rating denial which is the subject of the current appeal. According to the record, since the final decision, the Veteran testified under oath before the undersigned Veterans Law Judge in September 2011 that he did not have a history of ulcers, and was never treated for such, prior to his military service. Specifically, the Veteran confirmed that the notations in his service treatment records regarding a prior history of peptic ulcer disease, including prior hospitalization, were incorrect. As the Court stated in Shade v. Shinseki, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade, supra. Therefore, the Board has no alternative but to conclude that the Veteran's testimony as to the claim does elate to an unestablished fact necessary to substantiate the claim and, thus, is material as it raises a reasonable probability of substantiating the claim. 38 C.F.R § 3.156(a). ORDER The appeal as to the issue of entitlement to service connection for chronic venous insufficiency in the left leg is dismissed. As new and material evidence has been received, the claim for entitlement to service connection for peptic ulcer disease, is reopened and, to that extent only, the appeal is granted. REMAND A remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As stated above, the Veteran testified at the September 2011 Board hearing that he did not have a history of ulcers, and was never treated for such, prior to his military service. According to the in-service treatment records, it is clear that the Veteran was diagnosed with, and treated for, peptic ulcer disease and duodenal ulcers. A January 1972 treatment record indicates the Veteran reported a history of peptic ulcer disease in the past and was experiencing much indigestion and darkening of stools. The treatment record indicates that later that month, an x-ray revealed active peptic ulcers. Another record dated January 1972 states that active duodenal ulcer was on the upper gastrointestinal (GI) x-ray that month. Furthermore, an "[upper] GI as civilian in [December 1970] showed active ulcers, [and] he claims initial ulcer demonstrated [approximately] 6 months prior to [December 1970]. Entered active duty [September 9, 1971] as [a] volunteer. Technically he was ineligible for induction under AR40-501 [chapter] 2 [because of] documented peptic ulcer disease." Despite the Veteran's testimony that he did not experience any peptic ulcers prior to service, the prior statements made while receiving treatment during service are contrary to his current contentions. In addition, while the Veteran testified that he still experiences peptic ulcers on and off, clarification of his current disability is necessary. As such, the Board finds the Veteran should be afforded a new VA examination addressing these issues. Furthermore, on remand, any outstanding records must be secured and associated with the claims file. 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 the material could be determinative of the claim). It appears that the most recent VA treatment record within the claims file is dated May 2009. The Veteran further stated that he had been receiving treatment for his peptic ulcer disease at VA. Therefore, all outstanding records, VA or private, must be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment. All VA treatment records dated since May 2009, must be obtained and associated with the claims file. In addition, obtain all private treatment records which have not been obtained already. The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed condition. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can provide alternative forms of evidence. 2. Once the above instruction has been completed, schedule the Veteran for a VA examination with an appropriate specialist in order to ascertain the current nature and etiology of any diagnosis of peptic ulcer disease. The examiner is requested to provide the following information: a. On the basis of the record, can it be concluded with clear and unmistakable certainty that any currently diagnosed peptic ulcer disease preexisted the Veteran's entry into active military service, and b. If peptic ulcer disease clearly and unmistakably preexisted service, can it be concluded with clear and unmistakable certainty that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? c. If peptic ulcer disease did not clearly and unmistakably preexist service, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that it is etiologically related to his period of active service. All appropriate testing must be conducted and these results must be included in the examination report. A clear rationale for all opinions should be provided, along with a discussion of the facts and medical principles. The claims must be available for review by the examiner in conjunction with the examination and this fact should be acknowledged in the report. Additionally, the examiner should consider the Veteran's in-service treatment records, VA treatment records, and any private treatment records. Furthermore, the examiner should also discuss the Veteran's lay statements regarding history and chronicity of symptomatology when discussing the offered opinion. The clear and unmistakable evidentiary standard is an onerous one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Atkins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Clear and unmistakable evidence is evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanserson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (en banc)). However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Upon completion of the foregoing, review the examiner's report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 4. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim, considering all applicable laws and regulations. The AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, 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. 2013). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs