Citation Nr: 0000730 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 95-18 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for prostatitis with urinary tract infections. 2. Whether new and material evidence has been presented to reopen a claim for service connection for a respiratory condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The veteran served on active duty from November 1954 to November 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1994 decision by the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the veteran's claim of entitlement to service connection for a urinary tract infection, and his application to reopen a previously denied claim of service connection for a respiratory disability. In June 1998, the Board remanded the case to the RO for additional evidentiary and procedural development. The Board determined that there were additional, undeveloped issues which, as a safeguard against prejudice (see Bernard v. Brown, 4 Vet. App. 384 (1993)), had to be addressed in the first instance by the RO because they were found to be inextricably intertwined with the issues developed for appeal. Specifically, the Board requested the RO to address the issue of whether new and material evidence had been submitted to reopen the veteran's previously denied claim of service connection for prostatitis (which was denied in an October 1965 RO decision), as this was determined to have been inextricably intertwined with his claim of service connection for a urinary tract infection. Specifically, it was noted that the veteran had alleged that his urinary tract infections were a manifestation of prostatitis which had its onset in service. Also, the Board noted that since the time of the prior final RO denial of the veteran's claim for service connection for a respiratory disability in October 1965, the VA Department of Veterans Benefits issued guidelines in May 1988 which were pertinent to compensation claims for respiratory illness due to asbestos exposure. Thus, the Board instructed the RO in its June 1998 remand to address these guidelines, and also an undeveloped claim of service connection for tuberculosis, with regard to his appeal of the denial of his application to reopen his claim of service connection for a respiratory disability. In April 1999, the RO issued a decision in which it addressed the asbestos exposure issue raised by the veteran, affirmed its prior denial to reopen his claim of entitlement to service connection for a respiratory disability, and denied service connection for tuberculosis. The RO also denied his application to reopen a previously denied claim of service connection for prostatitis with urinary tract infection. Thereafter, the case was returned to the Board in August 1999 and the veteran now continues his appeal. The veteran's application to reopen his claim was received by the RO in June 1994. The veteran's statement read "I am requesting an increase in my service connected disability rating." At that time, the veteran's sole service-connected disability was epididymitis, rated as noncompensable. However, the RO did not address the issue of entitlement to a increased (compensable) rating for this service-connected epididymitis, and as this issue has not been adjudicated, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. An October 1965 RO decision denied service connection for prostatitis on the merits; the veteran did not file a timely appeal following notification that same month. 2. Evidence received since the October 1965 RO decision is cumulative and redundant, or, when viewed by itself or in connection with evidence previously assembled, is not significant towards fairly deciding the merits of the claim of service connection for prostatitis with urinary tract infection. CONCLUSIONS OF LAW 1. The October 1965 decision denying service connection for prostatitis is final. 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). 2. The additional evidence received subsequent to the October 1965 RO decision denying service connection for prostatitis, including urinary tract infection, is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records show that on entrance examination in November 1954, his genitourinary system was clinically normal. On his concurrent medical history report, he denied having frequent or painful urination. In addition to treatment for epididymitis in July 1955, for which he is currently service connected, the medical reports show that during active duty he was treated for acute urethritis in November 1955, for which he took no sick days, and for acute cystitis in April 1956, for which he took 3 sick days. Thereafter, no further treatment for any genitourinary complaints were shown. On separation examination in November 1958, his genitourinary system was normal. In November 1962, the veteran filed a claim for service connection, inter alia, for a genitourinary system disorder. Medical evidence associated with claim included his service medical records and VA examination and private medical reports, dated in 1963, showing diagnoses of chronic orchitis with epididymitis, and a private medical report dated in August 1965, showing a diagnosis of prostatitis. The evidence associated the epididymitis with his period of active service, but presented no indication of a relationship between prostatitis and service or prostatitis and epididymitis. In an October 1965 decision, the RO granted him service connection for epididymitis but denied service connection for chronic prostatitis. The veteran did not timely appeal the decision and it became final. In June 1994, the veteran applied to reopen his previously denied claim. In his application, he claimed entitlement to service connection for a urinary tract infection. With regard to his profession and employment history, the veteran reported in a written statement, dated in July 1994, that he served aboard ship as a boilermaker in the engine rooms of naval vessels during active duty, and that he worked as a core driller and an automobile mechanic after leaving military service. Evidence received since the October 1965 RO decision includes the veteran's private and VA medical records and examination reports. These records show private treatment in 1968 for a moderately enlarged prostate gland, and a diagnosis of chronic prostatitis on VA examination in July 1970 and December 1971. A private medical report dated in February 1984 shows that the veteran reported having recurrent, yearly attacks of prostate infection which he treated with antibiotics. In an August 1985 VA examination, however, no genitourinary pathology was found on examination. The transcript of a July 1997 hearing before the undersigned Board Member, sitting at the RO, shows that the veteran testified that he began having urinary tract problems during active duty in 1955, and continuously thereafter. He appeared to attribute these infections to a prostate problem. The veteran acknowledged, upon inquiry by the Board Member, that his swollen testicle was characterized as epididymitis. VA medical records which were submitted by the veteran at his July 1997 hearing and dated from 1982 to 1997 show that he had been diagnosed and treated on several occasions during that period of time for prostatitis, a history and diagnosis of urinary incontinence, and treatment for recurrent urinary tract infections. The report of an October 1998 VA examination of the veteran's genitourinary system shows that the veteran reported that since 7 or 8 years earlier, he began having intermittent frequency of urination, but without painful or burning symptoms or problems of incontinence. He denied having a history of prostate surgery. Following examination, he was diagnosed with benign prostatic hypertrophy with no clinical evidence of an active urinary tract infection. II. Analyses At his July 1997 hearing, the veteran, who is already service-connected for epididymitis, had indicated that he has a prostate condition which affects his urinary tract. Service connection for chronic prostatitis was denied previously by the RO in an October 1965 RO decision, which was not timely appealed by the veteran following notification. Under such circumstances, the decision of the RO is final, with the exception that the appellant may later reopen his claim for a de novo review of the claim on the merits if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104. Therefore, it must first be determined whether or not new and material evidence has been submitted such that the claim may now be reopened. 38 C.F.R. § 3.156(a) defines new and material evidence as evidence which had not been previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or 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. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The U.S. Court of Appeals for Veterans Claims (Court), in the recent and controlling cases of Winters v. West, 12 Vet. App. 203 (1999), and Elkins v. West, 12 Vet. App. 209 (1999), has prescribed a three-step process for reopening claims that would make Board decisions consistent with the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The three-step process prescribed by the Court is as follows: (1.) there must be a determination of whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); (2.) if new and material evidence has been presented, immediately upon reopening it must be determined whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); (3.) if the claim is well grounded, the case may be evaluated on the merits after ensuring that the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. The evidence to be considered must include all the evidence received since the last final denial on the merits of the claim. Glynn v. Brown, 6 Vet. App. 523 (1994). For purposes of making such a determination, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The final RO decision of October 1965 denied the veteran's claim of service connection for prostatitis based on the veteran's service medical records and private and VA medical reports dated from 1963 to 1965 which, while showing a diagnosis of prostatitis, do not show such a diagnosis during active duty nor any opinion associating the prostatitis with military service. Evidence submitted since the time of the October 1965 RO decision consists of various VA and private medical reports covering the period from 1968 to 1998. These show that the veteran had been treated on several occasions during that period for a diagnosis of prostatitis, and that he had been diagnosed with benign prostatic hypertrophy on VA examination in October 1998. The medical records submitted after October 1965 are not new and material within the meaning of 38 C.F.R. § 3.156(a) because, like the medical evidence previously considered by the RO in its prior final decision of October 1965, these records do not show a link between any prostatitis now present and the veteran's military service. The post-October 1965 medical evidence is therefore cumulative. As the veteran has failed to present new and material evidence in satisfaction of the first step of the three-step process prescribed by the Court in Winters and Elkins, his claim of service connection for prostatitis with urinary tract infections may not be reopened. His appeal of the December 1994 RO decision is therefore denied. ORDER The application to reopen a claim for service connection for prostatitis with urinary tract infections is denied. REMAND A review of the file shows that in June 1994, when the veteran applied to reopen his previously denied claim of service connection for a respiratory disability, among the several theories he presented to support the merits of his claim was one which was based on cigarette smoking. In a July 1994 letter to the veteran, the RO acknowledged the issue of entitlement to a respiratory disorder on this basis and notified him that the service connection claim, as it applied to cigarette smoking, was deferred, pending development of procedures and regulations by VA which were pertinent to compensation claims based on nicotine use. At that time, VA General Counsel had concluded that, under certain circumstances, service connection for disease or injury resulting in disability or death that was a direct result of tobacco use arising out of nicotine dependence that occurred during service may be established. See VAOPGCPREC 19-97, 62 Fed. Reg. 37954; VAOPGCPREC 2-93, 58 Fed. Reg. 42746 (1993). (The Board notes that precedent opinions of the General Counsel are binding on the Board, pursuant to 38 U.S.C.A. § 7104(c) (West 1991 & Supp. 1999)). Although recently enacted legislation prohibits service connection of a disability on the basis that it resulted from disease attributable to the use of tobacco products by a veteran during his or her service, see 38 U.S.C.A. § 1103 (West Supp. 1999), this statute applies only to claims filed after June 9, 1998; as noted previously, the veteran's claim for service connection for a respiratory disability predicated on a theory of cigarette smoking was filed in June 1994, concurrent with his application to reopen his respiratory disability claim. Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies. See Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. 308 (1991). The RO must therefore consider the law as it existed prior to June 9, 1998, in adjudicating this claim. The medical evidence, including written lay testimony of the veteran's family members, indicates that the veteran has a history of continuous tobacco use dating back to his period of active service in the 1950's, and a current habit of smoking at least one pack per day. The report of a December 1998 VA examination shows diagnoses of chronic obstructive pulmonary disease, with an accompanying VA physician's addendum indicating that the veteran has signs and symptoms of reactive airway disease with emphysema and calcified granulomatous disease on chest X-ray. Thus, the possibility exists that the provisions of VAOPGCPREC 19-97, 62 Fed. Reg. 37954; VAOPGCPREC 2-93, 58 Fed. Reg. 42746 may provide a basis to reopen and allow his previously denied claim of service connection for a respiratory disability. However, the file shows that the RO has not considered in the first instance the matter of service connection on the basis of cigarette smoking. Where, as in the present situation, an unadjudicated issue may have a significant impact upon another issue before the Board on appeal, such that any review of the issue on appeal may be rendered meaningless or a waste of judicial resources, the issues will be regarded as inextricably intertwined. Thus, the issue on appeal (i.e., whether new and material evidence has been submitted to reopen a previously denied respiratory disability claim) must be remanded for resolution of the inextricably intertwined issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Henderson v. West, 12 Vet. 11, 20 (1998). This is also to safeguard the veteran against prejudice and to preserve his right to appellate due process. See Bernard v. Brown, 4 Vet. App. 384 (1993). On remand, the RO should instruct the appellant to submit medical evidence to support his assertions that his current chronic respiratory diagnoses are due either to his cigarette smoking during the time he was serving in active duty from November 1954 to November 1958, or that they are secondary to nicotine dependency which had its onset in service. (There is an important distinction in this regard that the veteran should be informed: notwithstanding his reportedly long history of cigarette smoking, in order to well-ground his claim he must present objective medical evidence which relates his current respiratory diagnoses to the cigarette smoking he had done during his specific period of active duty over 40 years earlier, from November 1954 to November 1958. Alternately, he would need to present objective evidence of onset of his nicotine dependence during active duty to establish a well-grounded claim of service connection for his respiratory diagnoses as secondary to service-connected nicotine dependence. See Davis v. West, No. 97-1057 (U.S. Vet. App. Nov. 19, 1999). Finally, a Supplemental Statement of the Case was issued with regard to the matter of service connection for tuberculosis in April 1999. It does not appear that the veteran was notified of the need to file a substantive appeal if he wants the Board to address this issue. This should be accomplished. In light of the foregoing, the case is hereby REMANDED to the RO for the following actions: 1. The RO should take appropriated steps in order to obtain and associate with the claims file any outstanding records of the veteran's VA medical treatment for respiratory problems not already associated with the file, pursuant to 38 C.F.R. § 3.159 (1999). In addition, the RO should take appropriate steps to contact the veteran and instruct him to submit all medical evidence which tends to support his assertions that his pulmonary diagnoses were due to nicotine dependency which began in service. 2. Upon completion of the above development, and after undertaking any other development deemed warranted by the record, the RO should review the issue on appeal (i.e., whether new and material evidence has been submitted to reopen a previously denied respiratory disability claim), to include consideration of the allegation of the relationship between any current chronic respiratory disability and military service. The RO should apply the guiding provisions of the cases Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999) to the issue of newness and materiality of the evidence for reopening the previously denied respiratory disability claim. If the evidence is considered to be new and material and if the claim is well grounded, any needed development should be accomplished. This should include eliciting information from the veteran concerning the existence of relevant treatment records. The case should then be referred for an opinion by a specialist in psychiatric diseases. The claims folder must be made available to the physician, who should be asked whether the evidence shows that the veteran meets the criteria necessary to diagnosis dependence on nicotine as defined in the Diagnostic and Statistical Manual of the American Psychiatric Association; if so, whether it is at least as likely as not that such dependence was acquired in service and resulted in the continued use of tobacco products after service. If the veteran is diagnosed with nicotine dependence which is determined to have been acquired in service and to have resulted in the continued use of tobacco products after service, he should be afforded a special respiratory examination. The claims folder must be made available to the examiner prior to the examination, and all indicated tests and studies should be accomplished. The examiner should diagnosis all existing respiratory disabilities and determine whether it is at least as likely as not that any service acquired nicotine dependence was the proximate cause of or aggravated any existing respiratory disability. If there is aggravation, the degree of same should be indicated, to the extent feasible. If the benefit sought on appeal is not granted to the veteran's satisfaction, then he and his representative should be issued a Supplemental Statement of the Case and be afforded a reasonable opportunity to reply thereto. 3. The veteran should be notified of the need to file a timely substantive appeal to supplemental statement of the case issued in April 1999 if he wishes the Board to address the matter of service connection for tuberculosis. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is informed. The purpose of this REMAND is to obtain additional information. No inference should be drawn regarding the final disposition of the claim as a result of this action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The law requires full compliance with all orders in this remand. See Stegall v. West, 11 Vet. App. 268 (1998), and these claims must be afforded expeditious treatment by the RO. 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 Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Iris S. Sherman Member, Board of Veterans' Appeals