BVA9402926 DOCKET NO. 92-02 593 ) DATE ) ) ) THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. 3. Entitlement to service connection for Paget's disease. 4. Entitlement to service connection for a shoulder disability. 5. Entitlement to service connection for a chest disability. 6. Entitlement to service connection for a lower extremity disability. 7. Entitlement to service connection for a lung disability. 8. Entitlement to service connection for defective vision. 9. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from June 1953 to May 1955. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 1989 rating decision from the Indianapolis, Indiana, Regional Office (hereinafter RO). A notice of disagreement was received in November 1989. A statement of the case was issued the following month. A substantive appeal was received in March 1990. The case was docketed at the Board in March 1992. His service representative submitted written arguments in March and August 1992. By a decision in February 1993, the Board remanded the case to the RO for evidentiary and procedural development. The content of that remand, including the introduction section and instructions for evidentiary and procedural development, are incorporated herein by reference. The case was redocketed at the Board in October 1993. The appellant's service representative submitted additional written arguments in September and November 1993. REMAND As stated in the Board's February 1993 remand decision, the appellant's service medical records, excluding the report of examination for separation from service, are unavailable, and have been apparently destroyed by the fire in the 1970's at the National Personnel Records Center (hereinafter NPRC). Pursuant to the RO's request, NPRC searched for any relevant extracts from the Surgeon General's Office, but reported that none were found. In February 1993 the RO asked the veteran for specific information concerning his inservice treatment. He provided this information to the RO. In accordance with the Board's directives set forth in the remand, the RO provided this information from the veteran to the NPRC and requested NPRC to search all alternative sources for documentation of any relevant treatment of the appellant during service, including sick books and morning reports. However, in April 1993, NPRC responded by merely again noting that there were no medical records on file due to fire-related service, and requested the RO to have the appellant complete "Form 13055" in accordance with the VA Practice Manual M21-1. In May 1993, the RO sent "NA Form 13055, Request for Information Needed to Reconstruct Medical Data", to the appellant, with instructions to complete and return it to the RO. However, the claims folder does not reflect that the appellant has submitted the form as requested. He needs to be told he needs to do so, even if it means providing the same information he previously sent the RO, since this form is required by NPRC. It should be noted that the VA Practice Manual M21-1, Part III, Chapter 4 (1991), prior to revision, sets forth procedures to secure service medical records by alternative sources, particularly Section 4.07. The VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). It is not clear whether NPRC actually searched alternative sources for these records, or merely deferred a search pending receipt of a completed "Form 13055" from the appellant; and this ambiguity needs to be clarified prior to final appellate consideration. With regards to a procedural matter, in its February 1993 remand decision, the Board instructed the RO to issue a supplemental statement of the case, since the statement of the case provided the appellant failed to include laws and regulations pertaining to finality of unappealed rating determinations or presumptive service connection. Historically, service connection for a back disability and hearing loss had been denied by a rating decision in September 1981. The appellant had been notified of that adverse rating decision that month, but did not file a notice of disagreement therewith. The statement of the case issued in December 1989 addressed the issues of service connection for a back disability and hearing loss on the merits, rather than whether new and material evidence had been submitted to reopen these claims. "New" evidence means more than evidence which was not previously physically of record, and more than merely cumulative evidence. To be "material" evidence, there must be a reasonable possibility that consideration of the new evidence, when viewed in the context of all the evidence, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991) and Manio v.Derwinski, 1 Vet.App. 140 (1991). The RO failed to issue a supplemental statement of the case with laws and regulations pertaining to the finality of the unappealed rating decision of September 1981, despite the Board's instructions in its remand decision. Additionally, the RO failed to include the laws and regulations pertaining to presumptive service connection for Paget's disease, sensorineural hearing loss, and hypertension, despite the directives set forth in the remand. Paget's disease, sensorineural hearing loss, or hypertension is a disease which shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service, if it becomes manifest to a degree of 10 percent within one year from date of termination of such service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Accordingly, the case is REMANDED for the following: 1. The RO should request NPRC to state in writing whether it has searched all applicable secondary sources for documentation of any treatment the appellant may have received during service, including but not limited to, sick books and morning reports. If NPRC has not searched alternative sources, the reason should be stated for the record. If the reason is that NPRC is unable to search alternative sources without a completed "Form 13055", then the RO should again request the appellant to complete and submit this form. In the event that NPRC has not searched alternative sources and the appellant has submitted this form or it is possible to search without this form from the appellant, then this should be done, and the measures undertaken should be specifically recorded. 2. The RO should review the evidence and determine whether the appellant's claims may now be granted. Specifically, the RO should consider the claims for service connection for a back disability and hearing loss in light of the two-step analysis set forth in Manio, regarding whether new and material evidence has been submitted to reopen the claim. If the RO denies the claims of entitlement to service connection for a back disability and hearing loss on the basis that new and material evidence has not been submitted to reopen the claims, he should be provided a supplemental statement of the case which includes appropriate laws and regulations pertaining to the finality of the September 1981 rating decision which denied service connection for these disabilities, including but not limited to, 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302(a) (1993). The statement should include information about the prior denial and discuss the effect of the prior denial on the current claim. If the RO considers the claims for service connection for a back disability and hearing loss reopened, but denies them on the merits, he should be provided with a supplemental statement of the case which addresses these issues on the merits, including the laws and regulations for service connection for sensorineural hearing loss on a presumptive basis. Additionally, if the issues of service connection for Paget's disease and hypertension remain denied, the supplemental statement of the case should include the laws and regulations for service connection for Paget's disease and hypertension on a presumptive basis. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in this remand decision, detailing the requested development, have in fact been substantially complied with. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of the supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 F. H. AYER H. STERLING, M.D. HOLLY E. MOEHLMANN Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).