Citation Nr: 1803049 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-16 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the previously denied and final claim of service connection for polycystic kidney disease. 2. Entitlement to service connection for polycystic kidney disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to October 1989, and from January 2003 to November 2003. He has an additional 13 years, 5 months and 2 days of inactive service with the U.S. Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via live videoconference. A transcript of that hearing is of record. The issue of entitlement to service connection for polycystic kidney disease (PCKD) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT New and material evidence has been submitted sufficient to reopen a previously denied and final claim of service connection for PCKD. CONCLUSION OF LAW New and material evidence having been submitted, the claim of service connection for PCKD is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Given the positive outcome regarding the new and material evidence claim, below, any failure on VA's part in complying with the duties to notify and assist would constitute harmless error at this time. New and Material Evidence The Veteran's claim for service connection of PCKD was denied by the Board in a decision issued in March 2011. He seeks to reopen that claim. If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C.A. §§ 5108, 7104(b) (West 2014). In general, all decisions of the Board will be stamped with the date of mailing on the face of the decision. Unless the Chairman of the Board orders reconsideration, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100(a) (2017) In general terms, "new" evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. "Material" evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156(a) (2017). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). The Veteran's initial claim of service connection of PCKD was denied by the Board on March 8, 2011, and it became final as of that day. On August 24, 2011, the Deputy Vice Chairman of the Board denied the Veteran's request for reconsideration. The Veteran now seeks to reopen the previously denied claim based on new and material evidence. The Veteran served two separate periods of active service. Concerning his first period of active service, the Board determined that because the Veteran was presumed to be in sound condition upon entrance to service in 1983 (the Veteran's enlistment examination did not document a history or diagnosis of PCKD), then the disability could not have been aggravated by his first period of service. Somewhat curiously, despite noting several instances of abdominal symptomatology in service, the Board did not provide an analysis based on direct service connection. Essentially, the Board only focused on aggravation and did not address whether the Veteran's PCKD had onset during his first period of active service. In September 2011, the Veteran submitted a statement from a Dr. L.F.D (the Board notes that the date on the letter is April 4, 2011). She noted the Veteran's reported history of hematuria dating to 1985, as well as a period of abdominal pain documented in 1988. She then stated that he may have had PCKD since the 1980's. This evidence is new in that it was not of record at the time of the Board's prior decision. It is material in that it addresses a deficient portion of the Board's prior decision, namely a possibility of incurrence in service. As such, the Board will reopen the previously denied and final claim of service connection for PCKD. See Hodge, supra. At the very least, as discussed in more detail below, it has triggered the duty to assist the Veteran in obtaining a new VA examination. As such, the Board finds that new and material evidence has been submitted, and both service connection claims should be reopened. ORDER New and material evidence having been submitted, the previously denied and final claim of service connection for PCKD is reopened; to this limited extent, the claim is granted. REMAND Inasmuch as the Board regrets any delay in the adjudication of this case, a remand is necessary. First, the Board notes that in its prior decision it refers to a January 1985 medical record documenting urinalysis showing occult blood in the Veteran's urine. The Board has conducted an exhaustive search of the Veteran's records, and although it has found a January 30, 1985 record recording an upset stomach, ultimately diagnosed as viral gastroenteritis, it does not appear to include a finding of hematuria. It is unclear whether the Board had additional records available at the time of its prior decision, or whether it incorrectly interpreted the records available now. Therefore, on appeal, the RO should make all efforts to ensure that the Veteran's complete service treatment records are available for review. See 38 C.F.R. § 3.159(c)(2) (2017) (VA's duty to assist requires it make as many requests as necessary to secure relevant Federal records, including VA treatment records). Further, VA's duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (A) contains competent lay or medical evidence of a current diagnosed disability or persistent recurring symptoms of a disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. § 3.309, manifesting during an applicable period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability may be associated with the established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4)(1) (2017). The evidence submitted by the Veteran after the Board's 2011 denial indicates that it is possible that the Veteran's documented in-service stomach issues may have been a manifestation of his subsequently diagnosed PCKD. However, to date, a medical opinion has not been obtained which addresses any possible in-service incurrence of that disability. As such, on remand, a VA examination should be scheduled which addresses any possible medical nexus to his first period of active service. Accordingly, the case is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. The RO should make all necessary attempts to obtain any outstanding VA treatment records and service treatment records and associate them with the claims file. Particularly, any outstanding service treatment records from 1985 should be obtained. If any records cannot be obtained, the Veteran and his representative should be given notice of this fact, and allowed adequate time to submit additional evidence, to include the missing records. 3. Schedule the Veteran for a VA examination in connection with his claim. The complete claims file should be made available to the examiner selected to conduct the examination. The examiner should conduct a thorough examination of the Veteran, to include taking a detailed medical history. The examiner is reminded that the Veteran is competent to report a history of observable symptomatology including hematuria. The examiner should then provide the following opinion: whether it is at least as likely as not that the Veteran's PCKD had onset during his first period of active service (April 1983 - October 1989). A discussion of how the requested opinion was reached would be of assistance to the Board, and should include citation to evidence in the record, known medical principles, and/or medical treatise evidence, if applicable. 4. Thereafter, readjudicate the claim in light of all evidence of record. If the claim should remain denied, issue the Veteran and his representative a supplemental statement of the case and afford adequate time to respond before returning the matter to the Board for further appellate review. 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 2014). ______________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs