Citation Nr: 1129925	
Decision Date: 08/12/11    Archive Date: 08/23/11

DOCKET NO.  09-47 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an evaluation higher than 20 percent for the service-connected residuals of left tibia periostitis with osteomyelitis.

2.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for degenerative disc disease of the lumbosacral spine, to include as secondary to a service-connected left tibia disability.

3.  Entitlement to service connection for a right leg disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his wife
ATTORNEY FOR THE BOARD

Andrew Dubinsky, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1953 to June 1955.

This matter arises before the Board of Veterans' Appeals (Board) from April 2007 and August 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In February 2011, the Veteran and his wife testified at a Travel Board hearing in front of the undersigned Veterans Law Judge.  The transcript of the hearing has been reviewed and is associated with the claims file.

The issues of entitlement to an evaluation higher than 20 percent for the service-connected residuals of left tibia periostitis with osteomyelitis and entitlement to service connection for a right leg disability and degenerative disc disease of the lumbosacral spine are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In its May 2006 rating decision, the RO denied the Veteran's claim of entitlement to service connection for degenerative joint disease of the lumbosacral spine because he had not submitted evidence showing that his back disability was incurred in or aggravated by military service.  The Veteran did not appeal the decision, and it became final.

2.  Evidence received subsequent to the May 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for degenerative disc disease of the lumbosacral spine.


CONCLUSIONS OF LAW

1.  The May 2006 rating decision is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005).  

2.  New and material evidence has been submitted, and the claim of entitlement to service connection for degenerative disc disease of the lumbosacral spine is reopened.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1103 (2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide.  The Board notes that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008).

VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice").  VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In October 2009, July 2008, June 2007, and January 2007 correspondence, the RO advised the Veteran of what the evidence must show to establish entitlement to service connection for his claimed back disorder on a direct and secondary basis and also described the types of evidence that the Veteran should submit in support of his claim.  The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim.  The VCAA notice letters also provided the Veteran notice regarding the evidence and information necessary to establish a disability rating and effective date in accordance with Dingess v. Nicholson.  19 Vet. App. 473, 484 (2006).   

In particular regard to the additional notice requirements relevant to the Veteran's request to reopen his claim of entitlement to service connection for degenerative disc disease of the lumbosacral spine, the Board notes that the RO explained in the January 2007 and July 2008 VCAA notice letters that his claim was previously denied and that the decision had become final.  The RO also explained that VA needed new and material evidence in order to reopen the Veteran's claim and defined new and material evidence as evidence submitted to VA for the first time that pertained to the reason the claim was previously denied.  The RO further explained that the Veteran's claim was previously denied because the evidence did not show that his disability was incurred in or aggravated by active military service.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).      
Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed.  Quartuccio, 16 Vet. App. at 187.  

To fulfill its statutory duty to assist, the RO obtained the Veteran's VA and private treatment records to the extent possible and associated his service treatment records and hearing transcript with the claims file.  The Veteran was also afforded with compensation and pension examinations in July 2007 and February 2010.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case for the Veteran's degenerative disc disease of the lumbosacral spine were more than adequate, as they were predicated on a full reading of the private and VA medical records in the Veteran's claims file.  The examination included the Veteran's subjective complaints about his disability and the objective findings needed to rate the disability. 

The Veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that he or the VA needs to obtain.  Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Accordingly, the Board will proceed with appellate review.  

New and Material Evidence

The Veteran's current claim involves entitlement to service connection for degenerative disc disease of the lumbosacral spine.  He filed his most recent claim for service connection for degenerative disc disease of the lumbosacral spine in February 2006, which was denied by a May 2006 rating decision.  The RO denied the Veteran's claim because there was no evidence his disability was incurred in or aggravated by active military service.  The Veteran did not appeal this decision, and it became final.  

In July 2006, the Veteran filed a request to reopen this claim.  In August 2007, the RO denied the Veteran's claim because the evidence did not link his back disability to his military service.  As a preliminary matter, the Board notes that the Veteran's current claim involves entitlement to service connection for degenerative disc disease of the lumbosacral spine.  This claim is based upon the same disability as the Veteran's previous claim, which was denied by the May 2006 rating decision that became final.  As such, it is appropriate for the Board to consider the claim as a request to reopen the Veteran's previously denied claim.  Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008).

The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented.  New evidence means existing evidence not previously submitted to agency decisionmakers.  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 of record at the time of the last prior denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (2010).  

If evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).  

As noted above, the RO, in its previous rating decision, denied service connection for a back disability because it found that there was no evidence that the Veteran's back disability was incurred in or aggravated by active military service.  The Veteran received notification of the denial of his claim and was advised regarding his appellate rights in May 2006.  However, he did not appeal the decision to the Board, and it became final.  

The evidence of record at the time of the May 2006 rating decision included the Veteran's service treatment records, VA treatment records from July 2000 to February 2006, a lay statement from the Veteran's friend, and the Veteran's own statements.  Since the May 2006 rating decision, the RO obtained additional treatment records and scheduled the Veteran for compensation and pension examinations.  The Veteran also made statements on his own behalf, and he and his wife testified at a February 2011 Travel Board hearing.  
 
After reviewing the evidence received since May 2006, the Board finds that it qualifies as new and material evidence sufficient to reopen his claim for a back disability because one of the compensation and pension examiners found that it was at least as likely as not that the Veteran's back disability was caused by his leg disability.  Any statements the Veteran made to this examiner are presumed credible for the purposes of reopening his claim.  Thus, the Board finds that it is new and material in that it has not been submitted before and raises a reasonable possibility of substantiating the Veteran's claim.  

Accordingly, having determined that new and material evidence has been submitted, the Veteran's claim for service connection for degenerative disc disease of the lumbosacral spine is reopened.  Although the additional evidence is sufficient to reopen the claim, further efforts to assist the Veteran in substantiating his claim must be completed before the Board can consider the merits.

ORDER

Having presented new and material evidence, the claim of entitlement to service connection for degenerative disc disease of the lumbosacral spine, to include as secondary to a service-connected left tibia disability, is reopened.  To this extent, the appeal is granted. 





REMAND

After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claims of entitlement to an evaluation higher than 20 percent for the service-connected residuals of left tibia periostitis with osteomyelitis and entitlement to service connection for a right leg disability and degenerative disc disease of the lumbosacral spine.

The Veteran is currently in receipt of a 20 percent disability rating for his service-connected residuals of left tibia periostitis with osteomyelitis.  At his Travel Board hearing, the Veteran testified that his symptoms have worsened since his last compensation and pension examination in February 2010.  Given the Veteran's claim that his symptoms have worsened, the Board finds that a new compensation and pension examination would assist the Board in clarifying the extent of the Veteran's service-connected residuals of left tibia periostitis with osteomyelitis and would be instructive with regard to the appropriate disposition of the issue under appellate review.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination).  See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  Thus, this matter must be remanded for a compensation and pension examination to ascertain the current severity of the Veteran's service-connected residuals of left tibia periostitis with osteomyelitis.

VA must provide a compensation and pension examination to a Veteran when the information and evidence of record (1) contains competent lay or medical evidence of a current diagnosed disability; (2) 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, 3.313, 3.316, and 3.317 manifesting during the applicable presumptive period if the Veteran has the required service to trigger the presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service.  38 C.F.R. § 3.159(c)(4)(i) (2010).  The Veteran has complained of shooting pain into his right leg.  His statements could also be read to imply that these pains began in service. However, the Veteran did not receive a compensation and pension examination to determine whether his claimed right leg disability is related to his period active military service.  Therefore, this claim must be remanded so the Veteran can be afforded a compensation and pension examination.

Finally, the Board observes that there are two conflicting medical opinions of record regarding whether the Veteran's back disability is related to service or his service-connected leg disability.  First, a July 2007 compensation and pension examiner opined that it was equally likely as not that the Veteran's back disability was related to his leg disability given the time frame of onset and the overcompensation for leg injuries.  Then, in February 2010, another compensation and pension examiner found that the July 2007 examiner's opinion was "totally out of line" and found that there was no connection between the Veteran's back disability and either his period of service or his service-connected left leg disability.  Rather, this examiner found that the Veteran's leg complaints were caused by a separate disability and that his left tibia periostitis had resolved.  Thus, the record contains competing medical opinions, and the Board finds a remand for another medical opinion would be helpful in determining the etiology of this disorder.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate medical examination to determine the nature and extent of any current manifestations of his service-connected residuals of left tibia periostitis with osteomyelitis.  All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail.  The claims file and a copy of this remand should be made available for review in connection with the examination.  
The examiner should indicate in the report that the claims file was reviewed.  The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected residuals of left tibia periostitis with osteomyelitis and any other non-service-connected disorders that may be found.  If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should state this in the examination report.  The examiner must provide a comprehensive report including complete rationales for all conclusions reached.

2.  The Veteran should be afforded with an appropriate examination to determine what right leg disability the Veteran is diagnosed with, if any, and whether that right leg disability was caused by or aggravated by a service-connected disability or is otherwise related to his period of active military service.  The examiner should also determine the etiology of the Veteran's back disability.  The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination.  The examiner should indicate in the report that the claims file was reviewed.  All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report.

The examiner should specifically state what right leg disability the Veteran is diagnosed with, if any, and whether that disability is at least as likely as not (i.e., probability of 50 percent) caused by or aggravated by a service-connected disability or is otherwise related to the Veteran's period of active military service.  The examiner should also state whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's back disability was caused by or aggravated by a service-connected disability or is otherwise related to the Veteran's period of active military service  

The examiner must provide a comprehensive report including complete rationales for all conclusions reached.  

3.  After any additional development deemed necessary is accomplished, the Veteran's claims should be readjudicated.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issue.  An appropriate period of time should be allowed for response by the Veteran.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.      

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 Supp. 2010).


______________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs



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