Excerpts from decison below:
"The Court agrees with the appellant that he need not submit evidence having to do with every element of service connection in order to reopen a claim. He need only submit evidence relating to "an unestablished fact," 38 C.F.R. § 3.156(a), which certainly includes the sole reason given for the prior rejection."
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"There are three methods by which a claimant may obtain service connection "
by affirmatively showing inception or aggravation during service." 38 C.F.R. § 3.303(a) (2010). Generally, "the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir. 2004). In addition, there are two alternative methods of establishing service connection under § 3.303(b); a claimant may establish service connection by chronicity or by continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495-97 (1997)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1967
MICHAEL W. PRUITT, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Marine Corps veteran Michael W. Pruitt appeals through
counsel from
a May 1, 2009, Board of Veterans' Appeals (Board) decision that, among
other actions,1
declined to
reopen claims for disabilities of the cervical and lumbar spine and for
left-ear hearing loss, and
denied entitlement to service connection for a gastrointestinal disability.
For the following reasons,
the Court will reverse in part, and set aside in part, the Board's May
2009 decision and remand five
matters for further proceedings and readjudication consistent with this
decision.
The appellant presents multiple arguments for the Court's consideration.
With respect to the
Board's denial of his request to reopen, he argues that VA did not furnish
VCAA-compliant notice,
imposed a burden of proof that exceeds that of the Secretary's regulations
on new and material
evidence, and failed to adequately explain its disregard of evidence
favorable to the claims. With
regard to his service-connection claim for gastrointestinal disabilities,2
he argues that the Board
The Board decision made determinations with respect to six other matters
as to which the appellant raises no
argument. The Court therefore deems any issue with respect to these
matters abandoned. See Cromer v. Nicholson, 19
Vet.App. 215 (2005).
2
1
These disabilities include gastroesophageal reflux disease (GERD),
irritable bowel syndrome (IBS), hiatal
hernia, and acid reflux disease.
erred in denying a VA medical examination and relying on its own medical
opinion, failedto explain
its decision regardinga medical examination, and ignored favorable
evidence. While the Court does
not agree with all of these arguments, it does agree that new and material
evidence was presented
with respect to the left-ear hearing loss claim and that the spinal and
gastrointestinal claims should
be remanded.
The appellant had active duty service from July 1969 to July 1971 and from
August 1972 to
July 1982. On separation from service, in July 1982, he filed service-
connection claims for several
conditions, including neck and back problems and hearing loss. A regional
office (RO) denied these
claims in a May 1983 rating decision. The appellant did not perfect his
appeal and the RO decision
became final. In July 2006 he filed a claim to reopen these claims.
Additionally, in January 2007,
he filed a claim for service connection for a gastrointestinal condition
to include GERD and IBS.
The denial of all of these claims eventuated in this appeal.
I. ANALYSIS
A. Claim to Reopen
Pursuant to 38 U.S.C. § 5108, "if new and material evidence is presented
or secured with
respect to a claim which has been disallowed, the Secretary shall reopen
the claim and review the
former disposition of the claim." This Court generally reviews Board
decisions regarding whether
the appellant has submitted new and material evidence sufficient to reopen
a prior claim under the
"clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4
). See Elkins v. West, 12
Vet.App. 209, 217 (1999); see also Fortuck v. Principi, 17 Vet.App. 173,
178-79 (2003).
"New and material evidence" is defined as follows:
New evidence means existing evidence not previously submitted to agency
decision
makers. 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 final
denial of the claim sought to be reopened, and must raise a reasonable
possibility of
substantiating the claim.
2
38 C.F.R. § 3.156(a)(2010). "[T]he question of what constitutes material
evidence to reopen a claim
for service connection depends on the basis on which the prior claim was
denied." Kent v.
Nicholson, 20 Vet.App. 1, 10 (2006).
1. Cervical and Lumbar Spine Conditions
In this case, the Board noted that the basis on which these claims were
denied in a 1983
rating decision, in which the claims were characterized as "discopathy of
the cervical spine and
discopathy L3-L4," was that "the findings on examination and in the
service records did not support
the diagnosis." Record (R.) at 13. The Board stated that the evidence
submitted since that decision
included VA treatment records and examinations reflecting complaints of
cervical and lumbar back
pain, and statements from the veteran detailing how his initial back
injuries occurred in service. The Board observed that pain without an accompanying diagnosis is not compensable, and concluded that "[w]ithout a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology." R. at 16.
The appellant argues that a medical certificatedatedDecember6,1983,
approximately seven months after the May 1983 denial of the back claims, rendered a diagnosis of "acute lumbar facet pain." R. at 606; Appellant's Brief at 15. That the pain is more specifically located, however, is no more of a diagnosis than any general complaint of pain. See Sanchez- Benitez v. West, 13 Vet.App. 282, 285 (1999) (pain without explanatory diagnosis not compensable).
The Court notes, however, that one of the statements the appellant
submitted in support of
his claim states that he had undergone back surgery and nevertheless had
lingering problems. See
R. at 545. Assuming this statement to be accurate, as the Board must when
evaluating evidence to
reopen, see Justus v. Principi, 3 Vet.App. 110 (1992), it should have
sought the medical records
associated with this surgical procedure. Presumably, back surgery is only
recommended and
undertaken to address a diagnosed condition. See Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 300
(2008) ("[T]he content of information and evidence received by VA may
require an appropriate
response, consistent with the duty to assist."). Neither the Board
decision nor the Secretary's brief
mentions this evidence nor indicates that VA undertook any effort to
inquire after or obtain
associated records.
3
VA regulations provide specifically that for claims filed on or after
August 29, 2001, the duty
to obtain records applies to claims to reopen. See 38 C.F.R. § 3.159(c) (
2010) ("VA will give the
assistance described in paragraphs (c)(1) [(pertaining to obtaining
records not in Federal custody)],
(c)(2) [(pertaining to obtaining Federal records)], and (c)(3) [(pertaining to obtaining records in disability compensation claims)] to an individual attempting to reopen a finally decided claim."); see also Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. 2003) ("VA has chosen to assist claimants attempting to reopen in limited circumstances. Specifically, VA will give the assistance described in § 3.159(c)(1)-(3)."). Thus, the Board erred in not seeking any pertinent surgical records, which makes its statement of reasons or bases
at least premature. The Court will set aside the Board's determinations with respect to the cervical and lumbar spine conditions and remand the matters for further development.
2. Left-Ear Hearing Loss
The Board stated that the reason for the May 1983 denial of a claim for
left-ear hearing
disability was that "left ear hearing loss [was] not shown by the evidence
of record. " R. at 13. The
appellant underwent VA audio examinations in September 2006 and September
2007. Results from
both examinations showed that the appellant now has a left-ear hearing
disability for VA rating
purposes. See R. at 309, 517; 38 C.F.R. § 3.385 (2010). "The Secretary
concedes that the Court
should vacate and remand that portion of the Board's decision which found
that new and material
evidence had not been submitted to reopen [the] claim for service
connection for left-ear hearing
loss." Secretary's Brief at 3. The Court agrees with the concession.
The Board declined to reopen the claim on the basis that these test
results "do not raise a
reasonable possibility of substantiating the claims." R. at 15-16. The
Board relied on an opinion in
the September 2007 VA examination report, which was one of the documents
establishing a current
hearing loss disability. The examiner opined that "[t]he veteran's hearing
loss in the left ear is not
a result of noise exposure during his active duty military service." R. at
311. The examiner
elaborated that the separation examination showed no hearing deterioration
in the left ear and that
"[s]ince the damage is done when [the ear is] exposed to noise, a normal
audiogram subsequent to
the noise exposure would verify that the hearing had recovered without
permanent loss." R. at 312.
Although this opinion includes a medical explanation sufficient to entitle
it to be weighed in the final
4
determination, see Nieves-Rodriguez, 22 Vet.App. at 302, the reasoning
contained therein was not
part of the original denial in May 1983.
Therefore, the Board's determination is premature. The Court agrees with
the appellant that
he need not submit evidence having to do with every element of service
connection in order to
reopen a claim. He need only submit evidence relating to "an unestablished
fact," 38 C.F.R.
§ 3.156(a), which certainly includes the sole reason given for the prior
rejection. Because he
presented evidence of a current disability, the Board should have reopened
the claim.
The failure to do so short circuited the development of the claim, which
would have afforded
the appellant an opportunity to obtain his own medical evidence to support
a link between the
present left-ear hearing disabilityand service. It is unclear whether
everyphysician would agreethat
an examination noting normal hearing at separation precludes the
possibility of finding any damage
by noise exposure in service.
Therefore, the Court will reverse the Board's finding that new and
material evidence had not been submitted with respect to the left-ear hearing claim and remand for development of the reopened claim. Because the right-ear hearing loss claim and the left-ear hearing loss claim are inextricably intertwined in the rating process, the Court will set aside and remand that portion of the
Board decision also. See Simmons v. Shinseki, 24 Vet.App. 87, 93 (2010);
38 C.F.R. § 4.85 (2010).
B. Service-Connection Claim for Gastrointestinal Disability
There are three methods by which a claimant may obtain service connection "
by affirmatively showing inception or aggravation during service." 38 C.F.R. § 3.303(a) (2010). Generally, "the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir. 2004). In addition, there are two alternative methods of establishing service connection under § 3.303(b); a claimant may establish service connection by chronicity or by continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495-97 (1997).
The appellant argues that VA failed to fulfill its duty to assist by
declining to furnish a VA medical examination with respect to his gastrointestinal disability. This Court has held that in disability compensation claims
5
the Secretary must provide a VA 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, Previous HitinjuryNext Document, or disease occurred
in service or
establishingcertaindiseasesmanifestingduringanapplicablepresumptiveperiodf
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 another service-connected disability, but (4) insufficient competent
medical
evidence on file for the Secretary to make a decision on the claim.
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 U.S.C. §
5103A(d)(2). The Court
further characterized the third requirement of "an indication" that a
disability "may be" associated
with service as a "low threshold." McLendon, 20 Vet.App. at 83.
Inthis case,theBoard's analysis shows that at least two McLendon
requirements aremet.The
Board conceded that "[t]he Veteran clearly has GERD." R. at 20. The Board
also listed no less than
10 instances in which the service medical records (SMRs) reflected
complaints having to do with
thegastrointestinalsystem. BothindividuallyandcollectivelytheseSMRs record"
events"occurring
in service. As to the third requirement, "'in order to trigger the
Secretary's duty to provide a medical
examination . . . the evidence of record need only indicate that symptoms
of a disability, as opposed
to a disability itself, may be associated with active service.'" McLendon,
20 Vet.App. at 83 (quoting
Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004)).
Theappellant's present gastrointestinalsymptoms andthereportedin-
servicesymptoms may
be linked. However, if the Board concluded that the symptoms experienced
in service were different
from and therefore unconnected to the symptoms manifested in the
appellant's present
gastrointestinal conditions, it did not offer sufficient explanation for
that conclusion. Indeed, the
Board did not discuss the topic of a VA medical examination at all, which
is an omission requiring
remand. See Duenas, 18 Vet.App. at 519 (Board must provide reasons or
bases for its decision that
a medical examination was not required). The Court will remand for a more
complete statement of
reasons or bases.
The Court also agrees with the appellant that the Board had no medical
basis for its
conclusionthatthemultiplereports ofgastrointestinalproblemsin servicedid
not establishachronic
condition. See Colvin v. Derwinski, 1 Vet.App. 171 (1991); 38 C.F.R. § 3.
303(b) (2010). If the
6
Board deems this conclusion necessary to its analysis on remand, it will
require a medical opinion
in support.
For the further guidance on remand, the Court notes that the Board found
that continuity of
symptomatology was not shown because of the long time period between
service and the first
diagnosis of GERD. There is no requirement, however, for an uninterrupted
record of medical
treatment in order to establish continuity of symptomatology.3
A claimant may obtain service
connection by continuity of symptomatology if he can demonstrate that (1)
a condition was "noted"
during service; (2) there is postservice evidence of the same
symptomatology; and (3) there is
medical or, in certain circumstances, lay evidence of a nexus between the
present disability and the
postservice symptomatology. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (
citing Savage v.
Gober, 10 Vet.App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are
the essence of any
evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496.
A VA medical examination would be needed to provide evidence on whether
the symptoms
noted in service are the same symptoms noted after service and whether the
present disabilities are
linked to the postservice symptoms. The Board should also consider whether
and to what extent the
appellant is competent to comment on the similarity between in-service and
postservice symptoms
and the symptoms of his current disabilities.
II. CONCLUSION
On consideration of the foregoing, the Court REVERSES the May 1, 2009,
Board
determination that the appellant submitted no new and material evidence to
reopen the left-ear
hearing disability claim, SETS ASIDE the Board's determinations regarding
compensation for the
right-ear hearing claim, denial of the cervical and lumbar spine claims,
and denial of the
In this regard, the Board noted that one of the VA medical records
mentioned treatment in the intervening
time by a Dr. Rodrigues, but complained that "the Veteran has not provided
VA with the necessary authorization to
enable VA to obtain any private treatment records from Dr. Rodrigues on
his behalf." R. at 19. The Secretary points
to no evidence in the record before the Court that VA ever requested such
authorization or suggested that these records
would be relevant and potentially important to the determination. Again,
it is not appropriate to take a passive approach
to the possible existence of such evidence when its possible existence
becomes manifest. See Nieves-Rodriguez, supra.
3
7
gastrointestinal disability claim, and REMANDS these matters for further
proceedings consistent
with this decision.
On remand, the appellant will be free to submit additional evidence and
argument in support
of the above-listed claims, and the Board is required to consider any such
evidence and argument.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the
Board following the
remand herein ordered will constitute a new decision that, if adverse, may
be appealed to this Court
upon the filing of a new Notice of Appeal with the Court not later than
120 days after the date on
which notice of the Board's new final decision is mailed to the appellant.
Marsh v. West, 11
Vet.App. 468, 472 (1998).
DATED: February 11, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
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