Citation Nr: 18129456 Decision Date: 08/24/18 Archive Date: 08/24/18 DOCKET NO. 16-47 205 DATE: August 24, 2018 ORDER The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for inguinal hernia is granted. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for inguinal hernia is remanded. Entitlement to service connection for myeloma is remanded. Entitlement to service connection for peripheral neuropathy, left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy, left lower extremity is remanded. Entitlement to service connection for radiculopathy, right lower extremity is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder is remanded. Entitlement to a total disability rating based upon individual unemployability is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to VA burial benefits is remanded. FINDINGS OF FACT 1. In December 1988, the Regional Office denied the Veteran’s claim for service connection for a hernia on the basis that no evidence was available to show an in-service incurrence. 2. In January 2005, the RO declined to reopen the Veteran’s claim for service connection for hernia on the basis that no new evidence had been received to show an in-service incurrence of hernia. 3. The evidence received since January 2005 includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the service connection claim. CONCLUSION OF LAW New and material evidence has been presented to reopen the claim of entitlement to service connection for hernia. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran died in March 2017 and the appellant is his surviving spouse. Within a year of his death, the Veteran’s surviving spouse filed a request with the RO to be substituted as the appellant in claims the Veteran began prior to his death. The RO granted the appellant’s request to be substituted (under 38 U.S.C. § 5121A) in the Veteran’s appeal and informed her of the decision by a letter dated in January 2018. Accordingly, the appellant has been substituted as the claimant for the purposes of the service connection issues on appeal. She also has her own appeal pending related to service connection for the cause of the Veteran’s death and eligibility for burial benefits. To the extent that her claim included a claim for accrued benefits (under 38 U.S.C. § 5121), it is rendered moot by the appellant’s substitution as the claimant for the Veteran’s service connection issues on appeal. While substitution under 38 U.S.C. § 5121A is a form of accrued benefits claim, it is potentially more favorable to the appellant because it allows her to continue to submit evidence in support of the appealed issues, whereas the evidence in an accrued benefits claim under 38 U.S.C. § 5121 is limited to evidence in the claims file as of the date of a veteran’s death. Whether new and material evidence was received to reopen the claim of entitlement to service connection for inguinal hernia Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed 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.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). In this case, the Veteran originally claimed service connection for a hernia in March 1988. The RO denied the claim in December 1988. The basis for the denial was the lack of evidence to show that the Veteran’s hernia was incurred during his military service. The evidence of record at the time of the December 1988 decision included a June 1988 VA examination report, which showed the presence of a healed hernia. The RO attempted, but was unable to locate the Veteran’s service treatment records, thus the denial was based upon a lack of evidence to show the hernia was incurred in service. The Veteran then again claimed service connection for a hernia in August 2000. In January 2005, the RO declined to reopen the hernia claim. The basis for this denial was the ongoing lack of evidence of an in-service incurrence of hernia. The evidence of record included post-service treatment for recurring hernia, as well as continued efforts to obtain service treatment records. Because there was no new evidence to show an in-service incurrence, the claim remained denied. The Veteran expressed disagreement with this decision and a statement of the case was issued in November 2005. The Veteran, however, did not file a substantive appeal to perfect this issue before the Board at that time. Thus, the January 2005 decision became final. In December 2013, the Veteran filed this claim to reopen entitlement to service connection for inguinal hernia. Several statements and medical records have been submitted into the record during the pendency of this claim. Of particular importance is the November 2015 statement from the Veteran’s private physician. This physician summarized the Veteran’s reported medical history and concluded that his disorders, including the hernia, are “more probable than not” secondary to his military service. This new evidence pertains to the basis of the prior denial and presents the possibility of substantiating the claim with additional development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The records added to the claims file since January 2005 are not cumulative or redundant of the evidence previously of record. Rather, they suggest a potential relationship between the Veteran’s hernia and his active service, at least enough to warrant further development of the record. Moreover, these records are material in that it was the lack of evidence of a causal connection to service that was the basis of the prior denial. Accordingly, reopening of the claim for service connection for hernia is warranted. REASONS FOR REMAND The claims on appeal were denied based upon the lack of evidence of an in-service incurrence of the disabilities claimed. The record shows the RO made an effort to obtain the Veteran’s service treatment records during the pendency of the previously raised claim for a hernia and was unsuccessful. In July 2015, the Veteran’s service personnel records were added to the claims file, which show he served in the United States Army Reserve until February 1994. The record then shows that the RO was again attempting to obtain the Veteran’s service treatment records in April 2017. The most recent communication suggests follow up was needed. The following month, there was communication indicating some confusion related to a file with an incorrect Social Security number within the Veteran’s VA claims file. This was then corrected, but there is no additional evidence showing follow up, or perhaps a resubmission of a request for information with the correct Social Security number. The Board finds remand is necessary in order to allow the RO to complete all necessary action to locate the Veteran’s service treatment records, both for his period of active service and for his period of service with the United States Army Reserves until February 1994. 38 C.F.R. § 3.159(c)(2) (2017). The Board observes that the TDIU claim and the cause of death and burial benefits claims are intertwined with the service connection issues requiring development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of these issues must be deferred pending the adjudication of the service connection claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (if matter on appeal is inextricably intertwined with an issue or claim still pending before VA, for reasons of judicial economy or on prudential grounds, review of merits of the claim or issue adjudicated will generally be deferred for further adjudication, as appropriate); see also Gurley v. Nicholson, 20 Vet. App. 573, 575-76 (2007) (recognizing the validity of remands based on judicial economy when issues are inextricably intertwined). The matters are REMANDED for the following action: 1. Continue efforts to obtain the Veteran’s complete service treatment records, to include documents pertaining to his active service, as well as his service in the United States Army Reserves through February 1994. Document all requests for information as well as all responses in the claims file. 2. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claims on appeal should be readjudicated based on the entirety of the evidence. If any claim remains denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel