08-09 186

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