Citation Nr: 1415334 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 13-17 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left knee injury. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right leg injury, also claimed as right knee condition. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type 2. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of head injury, to include skull fracture and loss of memory. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for seizure disorder. 7. Entitlement to service connection for left knee injury. 8. Entitlement to service connection for right leg injury, also claimed as right knee condition. 9. Entitlement to service connection for residuals of head injury, to include skull fracture and loss of memory. 10. Entitlement to service connection for seizure disorder. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from January 1948 to January 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction of the case lies with the RO in North Little Rock, Arkansas. The record shows that the Veteran was scheduled for his requested hearing before a Veterans Law Judge in February 2014, but that he did not report and no good cause has been shown. His request for a Board hearing therefore is considered withdrawn. 38 C.F.R. § 20.704(d) (2013). 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 reopened issues of entitlement to service connection for left knee injury, for right leg injury, for residuals of head injury, and for seizure disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. A June 2005 rating decision denied the Veteran's claims for entitlement to service connection for left knee injury, for right leg injury, for an eye disability, for type 2 diabetes mellitus, for residuals of head injury, and for seizure disorder; and the Veteran did not appeal that decision in a timely manner nor was any new and material evidence submitted within the appeal period. 2. Evidence added to the record since the prior final denial in June 2005 is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating claims for service connection for left knee injury, for right leg injury, for residuals of head injury, and for seizure disorder. 3. Evidence added to the record since the prior final denial in June 2005 does not raise a reasonable possibility of substantiating the claims of service connection for an eye disability or for diabetes mellitus, type 2. CONCLUSIONS OF LAW 1. The June 2005 rating decision is final. 38 U.S.C.A. § 7015(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. Evidence submitted to reopen the claim of entitlement to service connection for left knee injury is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Evidence submitted to reopen the claim of entitlement to service connection for right leg injury, also claimed as right knee condition, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for an eye disability. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2013). 5. New and material evidence has not been received to reopen the claim of entitlement to service connection for diabetes mellitus, type 2. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2013). 6. Evidence submitted to reopen the claim of entitlement to service connection for residuals of head injury, to include skull fracture and loss of memory, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 7. Evidence submitted to reopen the claim of entitlement to service connection for seizure disorder is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issues of whether new and material evidence has been received to reopen the claims for left knee injury, right leg injury, residuals of head injury, and seizure disorder. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). With respect to the issues of whether new and material evidence has been received to reopen the claims for an eye disability and diabetes mellitus, type 2, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of claims to reopen service connection claims, the appellant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. The February 2010 VCAA letter provided notice of the elements of service connection and new and material evidence, and the reasons for the prior denial of the claims, as well as the assignment of a disability rating and/or effective date. Thus, the criteria of Kent are satisfied. See Kent, 20 Vet. App. at 9. The Board concludes that VA's duty to assist has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records and his post service VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Nearly all of the Veteran's service treatment records are determined to be unavailable in this case. As such, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In the February 2010 letter, the RO informed the Veteran that his service treatment records are presumed to have been destroyed in a fire at a records depository in July 1973, and that he can submit evidence from alternate sources. He was asked to complete and submit a NA Form 13055 (Request for Information Needed to Reconstruct Medical Data). 38 C.F.R. § 3.159(e). In March 2010, the Veteran submitted a written statement wherein he listed information regarding treatments received including during service for the claimed disabilities, including a newly claimed heat stroke in service. In this regard, the Board notes that in a January 2005 response to the RO's November 2004 request for any Surgeon General's Office (SGO) records or line of duty documents relating to a 1948 motorcycle accident reported by the Veteran, the National Personnel Records Center (NPRC) responded that no such records were found. While NPRC response was to a request that did not reference a heat stroke, it nevertheless established the absence of SGO records. A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). The record reflects that the Veteran has been receiving payments from the Social Security Administration (SSA). However, a June 2005 SSA Data report in the file reflects that the Veteran has not been found disabled by the SSA. Therefore, the Veteran's SSA payments are not disability-related benefits. As such, it is not necessary to obtain the Veteran's SSA records in this case. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). The Board also notes that there may be outstanding VA treatment records for the Veteran dated from 1974 to 1989. In a January 2012 letter, the RO notified the Veteran of the unavailability of these records from the Kansas City VA Medical Center (VAMC) and requested any VA treatment records in his possession. The Veteran responded that he, in fact, was treated at the Mt. Vernon Community Based Outpatient Clinic (CBOC) in Missouri; however, that facility is currently identified as being in Illinois. The RO made multiple attempts to obtain the Veteran's treatment records from various VA facilities, including VAMCs in Marion, Illinois and Kansas City, Missouri, and the Harry Truman VAMC in Columbia, Missouri. However, the VAMCs notified that no such records were found for the Veteran. Accordingly, further attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2); Gober v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that the duty to assist is not a license for a "fishing expedition" to determine whether there might be some unspecified information that could possibly support a claim). In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii). As discussed below, the Board concludes that new and material evidence has not been received to reopen the claims for service connection for an eye disability and diabetes mellitus, type 2. As such, no duty to assist examination provisions could have been violated. See id. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A ] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108 ]." 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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) (2013). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. 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). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) The Board denied the Veteran's original claim of service connection for a left knee condition in a February 1976 rating decision on the basis that the evidence did not show that the Veteran's left knee condition was incurred in or aggravated by military service. The Veteran did not submit any evidence within one year of the February 1976 rating decision, nor did he file a timely appeal to the February 1976 rating decision. However, a June 2005 rating decision referenced receipt of additional service records and adjudicated the claim for service connection for a left knee disability de novo. Service connection was denied. In that rating decision, the RO also denied service connection for right leg injury, residuals of head injury, type 2 diabetes mellitus, eye disability, and seizure disorder, on the basis that there was no evidence in service treatment records showing treatment for, or diagnoses of, these conditions. The Veteran did not submit any evidence within one year of the June 2005 rating decision, nor did he file a timely appeal to the June 2005 rating decision. Therefore, it is final. 38 U.S.C.A. § 7015(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). The Veteran filed a claim to reopen his claims for service connection for residuals of a left knee injury, a right leg injury, an eye disability, diabetes mellitus, residuals of head injury and a seizure disorder in January 2010. The March 2010 rating decision on appeal denied the claims to reopen. The basis of the June 2005 prior final denials was the RO's findings that there was no nexus between the Veteran's current disabilities and his service. Thus, in order for the Veteran's claims to be reopened, evidence must have been added to the record since the June 2005 rating decision that addresses this basis. The Veteran contends that he was involved in a motorcycle accident in 1948 while serving in the Air Force and sustained a bilateral knee injury, as well as a head injury. He has reported that he was treated at the Riverside Hospital in Marchfield, California after the accident. Pertinent evidence submitted and obtained since the June 2005 rating decision includes VA treatment records from the Columbia, Missouri VAMC, dated from June 1975 to December 1983; VA treatment records from the Phoenix, Arizona VAMC, dated from January 2000 to May 2011; VA treatment records from the Harrison, Arkansas CBOC, dated from June 2011 to January 2013; VA treatment records from the Columbia, Missouri VAMC, dated in October 2006 reflecting treatments for cataracts; a November 2011 VA treatment report from the Central Arkansas Healthcare System reflecting treatments for diabetic retinopathy; a 1951 letter written by the Veteran in service to his in-laws; and various written lay statements from the Veteran. In particular, a June 1975 VA orthopedic clinic report stated that the Veteran had a history of posttraumatic arthritis documented by X-ray secondary to a motorcycle accident involving the left knee in 1948. An October 1980 VA medical certificate and history also reflects that the Veteran had a previous right knee surgery in 1971. Additionally, in an April 2013 written statement, the Veteran reported that in 1951, while stationed in Tripoli, Libya, he suffered from a severe heat stroke. He stated that he has had seizures since that time and spent the last 35 years on medication for seizures. He further stated that Dr. Sachdejaswan from the Phoenix, Arizona VAMC told him that he believed that the heat stroke in service caused the Veteran's seizures. The 1951 letter written by the Veteran to his mother-in-law shows that he was in Tripoli, Libya. Without addressing the merits of this evidence, the Board finds that the additional evidence addresses the issues of whether the Veteran's current left knee disability, right leg/knee disability, any residuals of a head injury, or a seizure disorder are related to his military service, and it is presumed credible for the limited purpose of reopening claims. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claims for service connection for left knee injury, right leg injury, residuals of head injury, and seizure disorder. The Board thus finds that new and material evidence has been submitted to reopen the issues of entitlement to service connection for left knee injury, for right leg/knee injury, for residuals of head injury, and for seizure disorder, since the June 2005 rating decision. On this basis, the issues of entitlement to service connection for left knee injury, for right leg injury, for residuals of head injury, and for seizure disorder are reopened. However, with respect to the claim to reopen claims for service connection for diabetes mellitus and an eye disability, the evidence added to the record subsequent to the June 2005 rating decision is either duplicative or cumulative of records previously in the claims file, and/or does not address whether the Veteran's currently diagnosed type 2 diabetes mellitus or his eye disability, currently diagnosed as cataracts and diabetic retinopathy, is etiologically related to active service. None of the newly submitted objective evidence in any way indicates the Veteran's current diabetes mellitus or his eye disability had its onset during service, nor suggests that diabetes mellitus or his eye disability is in any way etiologically related to active service. The Veteran's lay statements in this regard, even when presumed credible, are duplicative or cumulative of assertions previously considered. As the preponderance of the evidence is against reopening the claims of entitlement to service connection for diabetes mellitus and an eye disability, the benefit-of-the-doubt rule does not apply, and these claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim for entitlement to service connection for left knee injury is reopened and, to that extent, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for right leg injury, also claimed as right knee condition, is reopened and, to that extent, the appeal is granted. New and material evidence not having been received, the claim for service connection for an eye disability is not reopened. New and material evidence not having been received, the claim for service connection for diabetes mellitus, type 2, is not reopened. New and material evidence having been received, the claim for entitlement to service connection for residuals of head injury, to include skull fracture and loss of memory, is reopened and, to that extent, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for seizure disorder is reopened and, to that extent, the appeal is granted. REMAND As outlined above, the Board has reopened the claims of service connection for left knee injury, for right leg injury, for residuals of head injury, and for seizure disorder. However, prior to appellate consideration of the reopened issues by the Board de novo, the Veteran must be afforded de novo consideration of the reopened claims on the merits by the RO. As discussed above, the Veteran contends that he was involved in a motorcycle accident in 1948 while serving in the Air Force and sustained bilateral knee and head injuries. He has reported that he was treated at the Riverside Hospital in Marchfield, California after the accident. As most of the Veteran's service treatment records are not available in this case, another attempt should be made to retrieve any records directly from the Marchfield Base Hospital in California. Furthermore, while the Veteran's service treatment records are not available to confirm the 1948 motorcycle accident reported by the Veteran, he is competent to attest to the factual matters of which he had first-hand knowledge, such as the history of the in-service injury occurred on active duty and observable symptoms since his military service, including the claimed heat stroke in 1951. See Layno v. Brown, 6 Vet. App. 465 (1994). As such, based on the lay evidence provided by the Veteran regarding his in-service injuries and observable symptoms, such as bilateral knee pain, loss of memory and seizure disorder since that time, the Veteran must be afforded appropriate a VA examination to determine the nature and etiology of any knee, head and seizure disorders. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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) (2013). Expedited handling is requested.) 1. The RO must review the claims file to determine all procedurally appropriate actions to locate and secure any clinical records of treatment of the Veteran directly from the Marchfield Base Hospital in California, dated in 1948. All attempts to locate and secure the Veteran's treatment records must be documented in the claims file. If, after all procedurally appropriate actions to locate and secure the said records have been made and it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, the RO must make a formal finding to that effect. The RO must also provide the Veteran and his representative with a proper notice that includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). The Veteran and his representative must then be given an opportunity to respond. 2. Obtain any outstanding treatment records for the Veteran from the VAMC in Phoenix, Arizona and CBOC in Harrison, Arkansas, and all associated outpatient clinics, dated from January 2013 to the present. 3. Schedule the Veteran for a VA examination to determine the etiology of any current left knee disability, right knee/leg disorder, residuals of head injury, and seizure disorder. The claims folder and a copy of this Remand must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether any current left knee disability, right knee/leg disorder, residuals of head injury (to include skull fracture and loss of memory), and/or seizure disorder are at least as likely as not (50 percent or greater probability) related to his military service, including the claimed motorcycle accident in 1948 and heat stroke in 1951. A complete rationale should be provided for all opinions expressed. In rendering the requested opinion and rationale, the examiner must note that the fact that there is no documentation of treatment in service is not necessarily fatal to the Veteran's claims and cannot be the only basis by which to reject a possible nexus to service. 4. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. After completing the above development, and any other development deemed necessary, readjudicate all claims on appeal taking into consideration any newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs