Citation Nr: 1104826 Decision Date: 02/07/11 Archive Date: 02/14/11
DOCKET NO. 08-09 186 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi
THE ISSUES
1. Whether there is new and material evidence to reopen a claim for service connection for a right foot disorder.
2. Entitlement to service connection for a right foot disorder.
3. Entitlement to service connection for hypertension.
4. Entitlement to service connection for migraine headaches.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs Commission
ATTORNEY FOR THE BOARD
Rochelle E. Richardson, Associate Counsel INTRODUCTION
The Veteran served on active duty from November 1952 to November 1957.
This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which determined the Veteran had not submitted new and material evidence and, therefore, denied his petition to reopen his claim for service connection for a right foot disorder. The RO also denied his claims for service connection for bilateral hearing loss, migraine headaches, and hypertension. He appealed all of these claims.
The RO has since issued another decision, however, in September 2009, during the pendency of the appeal, granting the claim for service connection for bilateral (i.e., right and left ear) hearing loss and assigning an initial 20 percent rating retroactively effective from January 25, 2007, the date of receipt of this claim. The Veteran has not since appealed for either a higher initial rating or earlier effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). So the hearing loss claim is no longer on appeal.
Regarding the claims that remain, because of the Veteran's age, the Board advanced these claims on the docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
In this decision, the Board is reopening the Veteran's claim for service connection for a right foot disorder because there is new and material evidence. Regrettably, though, the Board must then remand the underlying claim for service connection for a right foot disorder, as well as his claims for hypertension and migraine headaches, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDING OF FACT
Although the Veteran did not appeal the RO's August 1994 rating decision denying his claim for service connection for a bilateral foot condition, so including concerning his right foot especially, additional evidence since received relates to an unestablished fact necessary to substantiate this claim and raises a reasonable possibility of substantiating it.
CONCLUSION OF LAW
The RO's August 1984 rating decision initially considering and denying the Veteran's claim for service connection for a bilateral foot condition is final and binding based on the evidence then of record because he did not appeal that decision; however, he since has submitted new and material evidence to reopen this claim as it concerns his right foot, in particular. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. The Duties to Notify and Assist
Since the Board is reopening the claim for service connection for a right foot disorder on the basis of new and material evidence, and then remanding this claim for further development before readjudicating this claim on its underlying merits, the Board need not discuss at this juncture whether there has been compliance with the notice and duty to assist provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See, too, Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007); Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); and Shinseki v. Sanders, 129 S. Ct. 1696 (2009). This, instead, is better determined once the additional development of the claim on remand is completed.
Furthermore, because the Board is reopening the claim for service connection for a right foot disorder on the basis of new and material evidence, the Board need not determine whether there has been sufficient VCAA notice to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), wherein the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought, i.e., service connection. To satisfy this requirement, VA adjudicators are required to look at the bases of the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. See also VA Gen. Couns. Mem., paras. 2, 3 (June 14, 2006), wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. Here, the Board is reopening the claim, regardless, so even were the Board to assume for the sake of argument that there has not been sufficient Kent notice, this is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102.
II. New and Material Evidence to Reopen the Claim for a Right Foot Disorder
The RO originally considered and denied the Veteran's claim for a bilateral foot condition in an August 1994 rating decision. That same month, the RO sent him a letter notifying him of that decision and apprising him of his procedural and appellate rights in the event he elected to appeal. He did not appeal, however, so that decision became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103.
Since the RO has previously considered and denied this claim and the Veteran did not timely appeal the decision, the first inquiry is whether new and material evidence has been submitted since that decision to reopen the claim. 38 C.F.R. § 3.156(a). And irrespective of the RO's determination as to whether there is new and material evidence, so, too, must the Board make this threshold preliminary determination - before proceeding further, because it affects the Board's jurisdiction to adjudicate the claim on its underlying merits, i.e., on a de novo basis. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). If the Board finds that new and material evidence has not been submitted, then its analysis must end, as further analysis is neither required nor permitted. See Barnett, 83 F.3d at 1383-4. McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); VAOPGCPREC 05-92 (March 4, 1992).
If, however, there is new and material evidence, then the Board must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108.
For a petition to reopen, as here, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers; and 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 already of record at the time of the last prior final denial of the claim sought to be opened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").
The RO's August 1994 decision denying the Veteran's claim for a bilateral foot condition is the most recent final and binding decision on this claim, so it marks the starting point for determining whether there is new and material evidence. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis to determine whether the claim should be reopened and readjudicated on the merits).
In that August 1994 RO decision, the basis of the denial of the claim for the bilateral, i.e., right and left, foot condition was that the Veteran's service treatment records (STRs) were unremarkable for any indication of a foot condition and his feet were normal during his then most recent VA examination. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or a disease or some other manifestation of the disability during service).
In this appeal, the Veteran is only requesting to reopen his claim as it specifically concerns his right foot; he is not petitioning to reopen his claim as it instead relates to his left foot. That said, based on the RO's previous grounds for denial of this claim in the August 1994 rating decision, new and material evidence would consist of competent evidence of either relevant in-service complaints or treatment for a right foot disorder or evidence at least indicating he currently has a right foot disorder of some sort.
The additional evidence submitted since that August 1994 RO decision includes the Veteran's VA treatment records documenting his complaints and treatment relating to bilateral foot symptoms and providing a diagnosis of bilateral neuropathy affecting his feet. See his March 2007 VA treatment notes. Consequently, this additional medical evidence is both new and material because it relates to an unestablished fact necessary to substantiate his claim by providing a current diagnosis of a disability affecting his right foot. So this additional evidence raises a reasonable possibility of substantiating this claim. See 38 C.F.R. § 3.156(a).
This evidence need not also establish the required correlation between this disorder and his military service. See Evans v. Brown, 9 Vet. App. 273, 283-84 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, just probative as to each element that was a specified basis for the last disallowance). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit Court reiterated this, noting 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 the claim. Therefore, this claim is reopened.
ORDER
As new and material evidence has been submitted, the claim for service connection for a right foot disorder is reopened, subject to the further development of this claim on remand.
REMAND
Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service-connection) claims, VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant 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 a service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4).
When determining whether a VA examination is required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service- connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010)
Consequently, for the reasons and bases discussed below, the Board must remand the Veteran's claims for service connection for a right foot disorder, hypertension, and headaches.
As already mentioned, and cause for reopening his claim, the Veteran's VA treatment records confirm he has received a diagnosis of right foot peripheral neuropathy. So resolution of this claim turns on whether this condition is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").
The Veteran claims he injured this foot during training exercises in December 1952 or January 1953, received medical treatment during service for the injury, and has chronic (meaning permanent) disability as a consequence of that trauma. Unfortunately, his service treatment records (STRs) are mostly missing, presumably having been destroyed in a 1973 fire at the National Personnel Records Center (NPRC), which is a military records repository. However, there is a daily sick-call report dated in December 1952 showing medical treatment for an unknown cause. So it is at least possible he was seen concerning this reported injury, although this remains unverified. In this circumstance, that is, given the unavailability of any other records concerning his service that might provide further clarification of the circumstances surrounding that instance of treatment, VA has a heightened duty
to consider the applicability of the benefit-of-the-doubt rule, to assist him in developing his claim, and to explain the reasons and bases for its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).
However, the mere fact that there are missing or unaccounted for STRs, while indeed unfortunate, does not obviate the need for the Veteran to still have medical nexus evidence supporting his claim by suggesting a correlation between his current right foot disorder and his military service - and, in particular, his claimed injury to this foot in service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). That is to say, missing or unaccounted for STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999).
In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support presence of disability, including during service, even where not corroborated by contemporaneous medical evidence such as STRs. In other words, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Moreover, a Veteran is competent to report what occurred in service because testimony regarding first-hand knowledge of a factual matter is competent. See Washington v. Nicholson, 19 Vet. App. 363 (2005). The Board therefore is requesting an examination and opinion concerning whether the peripheral neuropathy now affecting the Veteran's right foot is a residual of his purported injury to this foot in service or, instead, the result of other factors unrelated to his military service.
Additionally, the Veteran claims that, while serving in Korea during the Korean Conflict, he was hospitalized for a week or two for hypertension and headaches and has continued to have these problems since. See the transcript of his July 2008 hearing before a local Decision Review Officer (DRO).
The Veteran's VA treatment records show he has the required diagnosis of hypertension, so the determinative issue is whether it dates back to his military service as he is alleging. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Hypertension also may be presumed to have been incurred in service if it manifested to a compensable degree, meaning to at least 10-percent disabling, within one year of his discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a).
The Veteran was provided a VA compensation examination concerning this claim in April 2010, and in June 2010 the VA examiner provided an opinion indicating the Veteran's hypertension is not due to or related to his perforated tympanic membrane (ear drum) in service because there are no anatomical or physiological manifestations of a perforated ear drum that could potentially result in a person's having hypertension. However, the VA examiner did not address the Veteran's more general assertion that his hypertension was incurred in service - whether it is related to the perforated tympanic membrane or not. So further supplemental comment is needed prior to deciding this claim. See Barr v. Nicoholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).
The Veteran maintains that his headaches also began during service while hospitalized in Korea and are secondary to either his hypertension or his repeated exposure to excessively loud noise (i.e., acoustic trauma). See the October 2010 statement from his representative on VA Form 646.
Again, because the Veteran's STRs are mostly missing, through no fault of his, he is simply unable to document any complaints or treatment he may have received during service for headaches, including while hospitalized. But he is competent to say he experienced headaches while in service and even during the many years since his discharge from service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board will have the ultimate responsibility of determining whether his lay testimony concerning this also is credible so as to, in turn, have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).
The fact that the Veteran sustained acoustic trauma during service from repeated exposure to excessively loud noise already has been conceded when granting service connection for his bilateral hearing loss. See the RO's September 2009 rating decision. But there is no competent medical nexus evidence of record addressing the purported cause-and-effect relationship between his claimed headaches and that accepted noise exposure in service. And insofar as he also claims his headaches may be due to his hypertension, these claims are inextricably intertwined and should be considered concurrently. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (indicating issues are "inextricably intertwined" when they are so closely tied together that a final decision concerning one or more of the claims cannot be rendered until a decision on another. These types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters). See also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); and see Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together.).
Accordingly, these claims are REMANDED for the following additional development and consideration:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.)
1. If possible, have the VA examiner that evaluated the Veteran in April 2010, and who subsequently submitted the medical nexus opinion in June 2010, provide supplemental comment concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's hypertension, though unrelated to his perforated tympanic membrane (ear drum) in service, nonetheless initially manifested during his service or alternatively to a compensable degree of at least 10-percent disabling within one year of his discharge from service, meaning by November 1958 (since he was discharged in November 1957). As a point of reference, according to 38 C.F.R. § 4.104, Diagnostic Code 7101, the minimum compensable rating of 10 percent for hypertension requires that his diastolic pressure have been predominantly 100 or more, or that his systolic pressure have been predominantly 160 or more, or that he have had a history of diastolic pressure predominantly 100 or more requiring continuous medication for control.
In the event this VA examiner is no longer available to provide this additional comment, obtain this necessary additional opinion from someone else similarly qualified. If someone else has to comment, this may require having the Veteran reexamined, but this is left to the designee's discretion of whether additional examination is needed.
2. Schedule the Veteran for appropriate VA compensation examinations to determine the etiology of his right foot disorder and headaches.
Have the examiner(s) provide opinions as to the likelihood (very likely, as likely as not, or unlikely): (1) any currently diagnosed right foot disorder, but especially peripheral neuropathy, is related to the Veteran's military service, and particularly to his claimed right foot injury in service; and (2) that his headaches are related to his military service - either to the already accepted acoustic trauma in service that led to his now service-connected bilateral hearing loss or, in the alternative, that his headaches are proximately due to, the result of, or aggravated by his hypertension (but only if the hypertension, itself, is determined to be related to his military service).
The term "as likely as not" (at least 50 percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
In offering these assessments, the examiner(s) must comment on the Veteran's reports of injury or disease in service and continuity of symptomatology since service. See Dalton v. Nicholson, 21 Vet. App. 23 (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on absence of evidence of a disability in the service treatment records to provide a negative opinion).
Since most of the Veteran's service treatment records are unavailable for consideration, through no fault of his, there is little-to- no chance of him documenting his alleged complaints or treatment in service, including his purported hospitalization. So, recognizing this, the examiner should consider whether the asserted events in service, if assumed for the sake of argument occurred as alleged, could have led to the currently claimed disabilities. The Board will have the ultimate responsibility of assessing the Veteran's credibility regarding the actual occurrence of these claimed events.
The claims file, including a complete copy of this remand, must be made available to the designated examiner(s) for review of the pertinent medical and other history.
The Veteran is hereby advised that failure to report for this examination, without good cause, may have detrimental consequences on these pending claims for service connection. See 38 C.F.R. § 3.655.
3. Then readjudicate the claims in light of all additional evidence obtained. If any claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of any remaining claim(s).
The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims 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. 2009).
______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs