Citation Nr: 0421638
Decision Date: 08/06/04 Archive Date: 08/09/04
DOCKET NO. 90-51 682 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Whether new and material evidence has been presented to
reopen the claim of service connection for a low back
disability.
2. Entitlement to service connection for an acquired
psychiatric disorder, including post-traumatic stress
disorder.
3. Entitlement to a compensable rating for acne.
4. Entitlement to a total disability rating based on
individual unemployability.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
George E. Guido Jr., Senior Counsel
INTRODUCTION
The veteran served on active duty from August 1980 to August
1983 and from February 1984 to April 1988.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of rating decisions of a Department of Veterans
Affairs (VA) Regional Office (RO) in December 1988, denying
service connection for an acquired psychiatric disorder, and
in December 2002, denying the remainder of the issues.
In September 2003, a hearing was held in Manila before the
undersigned who is the Veterans Law Judge designated by the
Chairman of the Board to conduct the hearing and to make the
final determination of the appeal. 38 U.S.C.A. § 7107(c).
At the hearing in September 2003 and on the record, the
veteran withdrew his appeal as to the issues of increased
ratings for varicose veins of the left leg, plantar fasciitis
of the left foot, migraine, and residuals of right testicular
surgery. 38 C.F.R. § 20.204(a), (b).
Also at the hearing in September 2003 and on the record, the
veteran indicated that he was perfecting an appeal of the
new-and-material issue and the issues of service connection
for PTSD, of an increased rating for acne, and of a total
disability rating based on individual unemployability. In
this case, under the authority of 38 U.S.C.A. § 7105(d)(3);
38 C.F.R. § 20.101(d), the Board accepts the record of the
hearing as a timely filing and adequate response,
constituting a substantive appeal that perfects an appeal of
these issues.
Except for the new-and-material issue, the issues are
addressed in the REMAND portion of the decision and are
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. In an April 1996 decision, the Board denied service
connection for a low back disability, diagnosed as a
developmental defect at L-5 and degenerative disc disease of
the lumbar spine and a herniated disc at L4-L5.
2. Since the April 1996 decision, the evidence associated
with the record is either cumulative or redundant of evidence
previously considered, does not bear directly or
substantially upon the specific matter under consideration,
and by itself and in connection with evidence previously
assembled is not so significant that it must be considered to
decide fairly the merits of the claim.
CONCLUSIONS OF LAW
1. The April 1996 Board decision, denying service connection
for a low back disability is final. 38 U.S.C.A. § 7103 (West
1991 & Supp. 2002).
2. New and material evidence to reopen the claim of service
connection for low back disability has not been presented.
38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156
(2001).
VCAA
On the new-and-material issue, during the appeal, the
Veterans Claims Assistance Act of 2000 (VCAA) was enacted,
codified in part at 38 U.S.C.A. §§ 5103, 5103A, and
implemented at 38 C.F.R. § 3.159, and amended VA's duties to
notify and to assist a claimant in developing the information
and evidence necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate the claim, which information and evidence
that VA will seek to provide, and which information and
evidence the claimant is expected to provide.
In Pelegrini v. Principi, __ Vet. App. ___, No. 01-944 (June
24, 2004), the United States Court of Appeals for Veterans
Claims held, in part, that VCAA notice, as required by
38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable adjudication by the RO on a claim for
VA benefits, even if the claim and initial unfavorable
adjudication occurred prior to the effective date of the
VCAA.
The veteran submitted his petition to reopen the claim of
service connection for a low back disability in October 2000.
In letters, dated in March and June 2001, addressing the
VCAA, the RO provided the veteran pre-RO-adjudication notice
under 38 U.S.C.A. § 5103. The RO adjudicated the claim in
December 2002.
As for the content of the notice, the RO notified the veteran
that the evidence needed to substantiate the claim was
medical evidence showing that the current back disability was
related to a condition of service origin. The veteran was
also notified that VA would obtain Federal records and other
medical records he identified. The RO requested that the
veteran identify any additional evidence or information. In
each letter, he was given 60 days to respond.
For these reasons, the Board finds that the RO's
preadjudicatory notice substantially complies with the
specificity requirements of Quartuccio v. Principi, 16 Vet.
App. 183 (2002) (identifying evidence to substantiate the
claim and the relative duties of VA and the claimant to
obtain evidence); Charles v. Prinicipi, 16 Vet. App. 370
(2002) (identifying the document that satisfies VCAA notice);
and Pelegrini, supra, (preadjudicatory VCAA notice).
As for the 60 days for submitting evidence, prior to
adjudicating the claim, 38 U.S.C.A. § 5103(b)(3) (West 2002 &
Supp. 2004) authorizes the Secretary of VA to make a decision
on a claim before the expiration of the one-year period
provided a claimant to respond to VA's request for
information or evidence. This legislation, effective as if
enacted on November 9, 2000, immediately after the enactment
of the VCAA, supersedes the decision of the United States
Court of Appeals for the Federal Circuit in Paralyzed
Veterans of America v. Secretary of Veterans Affairs, 345
F.3d 1334 (Fed. Cir. 2003) that invalidated a regulatory
provision, implementing the VCAA, that required a response to
VCAA, as here, in less than the statutory one-year period.
Also, as to the content of the notice, that is, the
requirement in 38 C.F.R. § 3.159(b)(1) that the veteran
should submit "any evidence in the claimant's possession
that pertains to the claim" was not cited verbatim, the RO
did request that the veteran identify any additional evidence
or information, which are words to the same effect. For this
reason, the Board determines that the notice provision of
38 C.F.R. § 3.159(b)(1) has been satisfied.
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claim. The RO did obtain private medical
records and the veteran has submitted additional evidence. As
there are no additional records to obtain, the Board
concludes that the duty-to-assist provisions of the VCAA have
been complied with.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Evidence Previously Considered by the Board in the April 1996
Decision
In order to determine whether the additional evidence is new
and material, a summary of the evidence previously of record
and considered at the time of the April 1996 Board decision
follows.
For the first period of service, the service medical records
show that, in February 1983, the veteran was seen for low
back and left hip pain of one day's duration. There was no
history of low back pain or of trauma. The assessment was
contusion. On separation examination in July 1983, the spine
was evaluated as normal.
On entrance examination for the second period of service in
January 1984, the spine was evaluated as normal. The veteran
denied recurrent back pain. In June 1984, he was seen for a
complaint of low back pain for one day's duration after
working on a truck. The physical examination was normal.
The impression was low back pain. The remainder of the
service medical records are silent for any further back
complaint. On separation examination in March 1988, the
spine was evaluated as normal.
After service and on the initial report of VA examination in
June 1988, the diagnosis was a developmental defect of L-5,
which was established by an X-ray finding.
Other VA records and records of a service department,
beginning in 1989, disclose the following: The veteran
complained of low back pain while jogging and the assessment
was low back strain (May 1989); he was seen for a complaint
of recurring lower back pain associated with his job as a
fireman and the assessment was chronic lower back strain
(July 1989); he was treated for low back strain after he
slipped and fell, coming out of a shower (March 1990); he
indicated that he noticed low back pain in service in 1988
and that he had injured his back in service, carrying a
rucksack, and the assessment was lower back pain (April
1990); he was seen for low back pain several times (February
to July 1990); an MRI revealed degenerative disc disease at
L5-S1 and a herniated disc at L4-L5 (April 1993); he
complained of intermittent back pain at work and the
assessment was back strain, improved but not resolved
(January 1994); and, he had no further back pain (February
1994).
In its April 1996 decision, the Board found that the isolated
episodes of low back pain during service were acute and
transitory and resolved without residual disability, that the
developmental defect of L-5, shown on VA examination in 1988,
was not a disease or injury within the meaning of applicable
legislation providing
compensation benefits, and that there was no etiologic link
between any event in service and degenerative disc disease of
the lumbar spine and a herniated disc first demonstrated more
than one year following separation from service.
Legal Criteria
The law provides that if new and material evidence has been
presented or secured with respect to a matter that has been
disallowed, the matter may be reopened and the former
disposition reviewed. 38 U.S.C.A. § 5108.
In determining whether new and material evidence has been
submitted, it is necessary to consider all the evidence since
the last time the claim was denied on any basis. The newly
presented evidence need not be probative of all the elements
required to award a claim for service connection; however,
the additional evidence must tend to prove the merits of the
claim as to the element that was the specified basis for the
last final disallowance of the claim.
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. §3.156(a).
Recently 38 C.F.R. § 3.156(a) was amended. However the
amended version applies only to claims to reopen received on
or after August 29, 2001. As the veteran's petition to
reopen his claim was filed prior to that date, the amended
regulation does not apply.
Evidence Presented Since the April 1996 Board Decision
The evidence presented since the April 1996 Board decision
consists of the following items: (1) a copy of the June 1984
entry in the service medical records,
(2) a copy of the April 1993 MRI; (3) a copy of an August
1996 hospital report; (4) an April 2003 report of VA
examination; and, (5) the veteran's testimony at the hearing
in September 2003.
Analysis
Items 1 and 2 are copies of records previously submitted and
were part of the record considered by the Board in its April
1996 decision. Since new evidence means evidence not
previously submitted, these items do not meet the regulatory
standard of new evidence. 38 C.F.R. § 3.156.
Item 3 is a copy of a 1996 hospital report, showing treatment
for an acute cervical strain following a vehicle accident.
This item is not material because it does not bear directly
on the matter under consideration, that is, a link between an
injury, disease, or event of service origin and the post-
service documentation of degenerative disc disease at L5-S1
and a herniated disc at L4-L5, which was the basis for the
prior denial of the claim.
Item 4, a diagnosis of low back pain on VA examination in
April 2003, which was not attributed to an injury or disease
of service origin, is not material because it is cumulative
of evidence previously considered, namely, evidence of post-
service low back pain.
Item 5, the veteran testified that he thought his back
disability was related to the wear and tear on his back
caused by wearing a pack, carrying a radio, and the rest of
the training required to stay in shape for physical fitness
tests during service.
With respect to the veteran's testimony, regarding the cause
of his back disability, where the question involves medical
causation or a medical opinion, credible medical evidence is
required. As a layperson, the veteran is not qualified to
relate his back disability to a service event because such an
opinion requires medical expertise. Espiritu v. Derwinski, 2
Vet. App. 492, 494-5 (1992) (holding that laypersons are not
competent to establish a medical diagnosis or draw medical
conclusions). For this reason, the veteran's testimony is
not material.
As the claim was previously denied in 1996 because the
evidence did not establish a link between an event of service
origin, that is, an injury or disease, and post-service
degenerative disc disease of the lumbar spine and a herniated
disc, and as the additional evidence does not tend to prove
the merits of the claim as to such a link, which was the
specified basis for the last final disallowance of the claim,
the Board concludes that new and material evidence has not
been presented to reopen the previously disallowed claim and
the benefit-of-the-doubt doctrine is not applicable.
38 U.S.C.A. § 5107(b).
ORDER
As new and material evidence has not been presented, the
petition to reopen the claim of service connection for a low
back disability is denied.
REMAND
On the claim of service connection for an acquired
psychiatric disorder, under 38 C.F.R. § 3.159(c)(2), when
relevant records are in the custody of a Federal department
or agency, VA is required to make as many requests as are
necessary to obtain the records unless the records sought do
not exist or further efforts to obtain them would be futile.
From the beginning of the appeal, the veteran has maintained
that he was treated at the Tripler Army Medical Center from
December 1987 to January 1988 and that these records are
relevant to his claim for service connection. The record
does contain several references to treatment of the veteran
at the Tripler Alcohol Treatment Program during this period.
In January 1999, a representative of the Tripler Army Medical
Center (TAMC) reported that the veteran's records were at the
Honolulu VA facility. In response, the Honolulu VA facility
reported that there were no TAMC records in the
veteran's chart. In July 1999, VA made a second request for
records to Schofield Barracks. In reply, it was indicated
that a search for mental health records was negative.
Because of the unusual circumstances in this case, the Board
determines that a follow-up request should be made directly
to TAMC in order to obtain the relevant records.
Also, on the claim for increase for the skin disability, the
Board determines that the examination in April 2003 was
inadequate to rate the disability under the criteria for a
compensable rating.
For these reasons, the case is REMANDED for the following
action:
1. Under the VCAA, notify the
veteran that to substantiate his
claim of service connection he needs
medical evidence that an acquired
psychiatric disorder began in
service or a diagnosis of PTSD and
credible supporting evidence of an
in-service stressor. For the claim
for increase, he needs evidence that
he has deep acne. Also, notify the
veteran that:
a. If he has evidence to
substantiate his claim, not
already of record, that is not
in the custody of a Federal
agency, such as records of
private medical care, he should
submit the records himself or
with his authorization, VA will
make reasonable efforts to
obtain the records on his
behalf.
b. If he has evidence to
substantiate his claim, not
already of record, that is in
the custody of VA or other
Federal agency, including the
Social Security Administration,
VA will obtain any such records
he identifies.
c. He should provide any
evidence in his possession that
pertains to the claims.
2. Request the clinical records
from December 1987 to January 1988
from Tripler Army Medical Center,
pertaining to the veteran's
participation in the TAMC Alcohol
Treatment Program.
3. Arrange for the veteran's file
to be reviewed by the VA examiner
who conducted the examination in
January 2001, if possible. The
record shows that the veteran has
many health problems, both service-
connected and nonservice-connected.
Among the nonservice-connected
disabilities is loss of the left
eye, due to a traumatic injury. The
examiner is asked to clarify the
comment he made in the April 2001
addendum in which he refers to a
diagnosis of depression secondary to
the veteran's current medical
condition. The examiner is asked to
comment on the following:
a. Whether the veteran's
current medical condition
includes all of his health
problems, both service-
connected and nonservice-
connected disabilities;
b. Whether the service-
connected disabilities, alone,
caused depression and, if so,
the medical basis for such a
conclusion; and,
c. If there is no etiological
relationship between depression
and the service-connected
disabilities, alone, whether
the underlying depression, as
contrasted to symptoms, is
worsened by the service-
connected disabilities. And,
if so, what degree of
disability, which is over and
above the degree of disability
that existed prior to the
aggravation, is present.
d. If the examiner who
conducted the January 2001
examination and provided the
April 2001 addendum is no
longer available to conduct a
review and offer clarifying
opinion, a new examination of
the veteran should be arranged
and the examiner should attempt
to answer the questions posed
above.
4. Schedule the veteran for a VA
skin examination to determine the
current level of impairment. The
examiner is asked to describe the
present skin condition as either
superficial acne or deep acne. If
deep acne is found, the examiner is
asked to determine whether the
affected area is less or more than
40 percent of the face and neck.
The veteran's file must be made
available to the examiner.
5. After the requested development
has been completed, adjudicate the
claims, including the issue of a
total disability rating. If any
benefit sought is denied, prepare a
supplemental statement of the case
and return the case to the Board.
The veteran has the right to submit additional evidence and
argument on the matter 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_____________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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