Citation Nr: 1528549 Decision Date: 07/02/15 Archive Date: 07/15/15 DOCKET NO. 14-05 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for chronic pancreatitis. 2. Entitlement to service connection for chronic pancreatitis. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from February 1979 to January 1982 and from April 1984 to April 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in September 2011 and December 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The issues of entitlement to service connection for chronic pancreatitis and entitlement to service connection for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 2007 rating decision denied, among other things, entitlement to service connection for chronic pancreatis; the Veteran did not file a timely notice of disagreement as to the issue; and new and material evidence was not submitted as to the issue within the one-year appeal period. 2. Evidence received since the May 2007 rating decision in relation to the Veteran's chronic pancreatitis claim is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for entitlement to service connection for chronic pancreatitis. CONCLUSIONS OF LAW 1. The May 2007 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. New and material evidence having been received, the claim for entitlement to service connection for chronic pancreatitis is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist 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, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). 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). In this decision, the Board finds that new and material evidence has been received to reopen the claim for entitlement to service connection for chronic pancreatitis. Given the favorable nature of this action, which is not prejudicial to the Veteran, the Board need not address VA's duty to notify and assist in the context of that matter. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). An exception to this rule is provided in 38 U.S.C.A. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously submitted to VA. Material evidence is 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) (2014). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that 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 has 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). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d. 1163, 1167 (Fed. Cir. 2004). Analysis A May 2007 rating decision denied entitlement to service connection for pancreatitis. The Veteran was notified of the decision in a letter dated May 15, 2007. The Veteran did not file a timely notice of disagreement as to the denial, and new and material evidence was not received within the one-year appeal period following notification of the rating decision. Therefore, the May 2007 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. At the time of the prior final rating decision in May 2007, the evidence included service treatment records; lay statements from the Veteran, Social Security Administration disability records, and VA treatment records. The May 2007 rating decision denied service connection for chronic pancreatitis because the evidence did not show that the Veteran's current chronic pancreatitis occurred in or was caused by his active service. Evidence associated with the claims file since the May 2007 rating decision includes copies of service treatment records submitted by the Veteran, which are duplicate of service treatment records that were of record at the time of the May 2007 rating decision; VA treatment records; private treatment records; and additional statements from the Veteran. The Board finds that some of the evidence submitted or obtained since the final May 2007 rating decision constitutes new and material evidence sufficient to reopen the claim for entitlement to service connection for pancreatitis. Specifically, the Veteran submitted a letter from M. J. Comesanas, M.D., dated in November 2002 that states the Veteran's chronic pancreatitis is at least as likely as not related to his military service. The Veteran also submitted a letter from A. G. Adeoti, M.D., dated in March 2012 that states the Veteran's pancreatitis is chronic, and suggests that it dates as far back as February 1989. This evidence is new because it was not previously considered by VA. It is also material because it relates to an unestablished fact necessary to substantiate the claim in that, if accepted as true, the opinions posit a causal relationship between the Veteran's active service and his current chronic pancreatitis. The Board therefore finds that new and material evidence has been received and the claim for entitlement to service connection for chronic pancreatitis is reopened. ORDER New and material evidence having been received, the claim for entitlement to service connection for chronic pancreatitis is reopened, and to that extent only, the appeal is granted. REMAND As to the issue of entitlement to service connection for chronic pancreatitis, the Veteran has not yet been afforded a VA examination. VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran 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 insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2014); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the VA treatment records show that the Veteran receives ongoing treatment for chronic pancreatitis. In addition, the Veteran has put forth multiple theories as to how his current chronic pancreatitis may be related to his active service. Specifically, the Veteran has asserted that, during service, he was treated for various gastrointestinal symptoms, including vomiting and abdominal tenderness, that were deemed to be of unknown origin or due to a kidney infection. The Veteran asserts that those symptoms were actually attributable to the same chronic pancreatitis he experiences today. See, e.g., "BVA 90 Day Response," dated in August 2014. The Veteran has also submitted internet articles that medically link exposure to lead and pancreatitis, and has accurately pointed out that his service treatment records show that he was found to have high levels of lead in his blood on at least one occasion during active service. The Veteran is competent to report pain and other symptoms capable of lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran has not been shown to have the medical training and knowledge necessary to provide an opinion on a complex medical matter such as the likely etiology of pancreatitis. Therefore, his opinion that his current chronic pancreatitis is etiologically related to his active service is not considered competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes that the internet articles submitted by the Veteran are of a general nature not specific to the Veteran's case, and are not accompanied by an opinion from a medical expert. Therefore, they cannot be accepted as evidence sufficient to grant the benefit sought on appeal. See Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509, 513-14 (1998) (noting that medical literature can provide important support when combined with an opinion of a medical professional if the literature discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion). In addition, as noted above, Dr. Comesanas and Dr. Adeoti have both provided competent medical evidence linking the Veteran's current chronic pancreatitis to his active service. However, neither provided adequate rationale to support their conclusions. Therefore, the opinions are of little to no probative value, and are insufficient bases on which to grant service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two that the Board can consider and weigh against contrary opinions). There are no other competent medical opinions of record that provide an etiological link between the Veteran's current chronic pancreatitis and his active service. As such, there is competent evidence of a current disability, evidence of an in-service disease, and an indication that the current disability may be associated with the in-service disease, but insufficient competent medical evidence upon which to make a decision on the claim. Therefore, a remand is warranted so that the Veteran may be afforded a VA examination to determine the nature and likely etiology of his current chronic pancreatitis. McLendon, 20 Vet. App. at 81. As to the issue of entitlement to service connection for PTSD, the December 2012 rating decision denied the Veteran service connection for PTSD. The Veteran was notified of that decision in a letter dated December 28, 2012. In March 2013, the Veteran, through his representative at the time, requested that the decision be reconsidered. Accordingly, the RO reconsidered the decision in a May 2013 rating decision, again denying the claim. The Veteran was notified of that denial in a letter dated September 11, 2013. In December 2013, within the one-year appeal period of the December 2012 rating decision and the May 2013 rating decision, the Veteran submitted a notice of disagreement (NOD) as to the denial of service connection for PTSD. See VA Form 21-0958, Notice of Disagreement, received in December 2013. The Veteran has not been issued a corresponding statement of the case (SOC) for the issue. As a timely NOD as to the matter has been received, and the Veteran has not otherwise withdrawn the issue in writing, the Board is required to remand the issue for the issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). In addition, the record shows that the Veteran has consistently received treatment from a VA treatment facility. However, VA treatment records currently associated with the claims file date only through December 2013. The Board finds that it is likely that there are outstanding VA treatment records relevant to the matters remanded herein. As such, on remand updated VA treatment records, to include from the VA New Jersey Health Care System dated from December 2013 through the present, must be obtained and associated with the record. See 38 U.S.C.A. § 5103A (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records relevant to the matters being remanded, to include from VA New Jersey Health Care System dated from December 2013 through the present and associate the records with the claims file. 2. Provide the Veteran a statement of the case with respect to the issue of entitlement to service connection for posttraumatic stress disorder. The Veteran should be informed that he must file a timely substantive appeal in order to perfect an appeal to the Board of the December 2012 rating decision as to this issue. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2014). If a timely substantive appeal is filed, all appropriate actions must be completed. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed pancreatitis. Provide a copy of this remand and the claims file to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a. Does the Veteran have a diagnosis of pancreatitis? b. If so, is it at least as likely as not (50 percent probability or more) that the Veteran's pancreatitis had its onset during his active service or is otherwise causally or etiologically related to the Veteran's active service? The examiner should indicate that the claims file was reviewed. A complete rationale should be provided for all opinions given. Any opinion given should reflect consideration of the Veteran's in-service gastrointestinal symptoms, including those that were diagnosed as a kidney infection, and of the Veteran's in-service blood tests showing high lead levels. 4. After completion of the above, review the expanded record, including the evidence entered since the statement of the case, and determine whether service connection for chronic pancreatitis may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs