Citation Nr: 0002822 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 96-08 710 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for Crohn's disease as secondary to post-traumatic stress disorder (PTSD). 2. Entitlement to secondary service connection for Crohn's disease based on a de novo review of the record. 3. Entitlement to an increased rating for PTSD, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from August 1964 to August 1968. By final decision of March 1994, the Board of Veterans' Appeals (Board) denied, among other things, service connection for a Crohn's disease as secondary to service- connected PTSD. This matter now comes before the Board on appeal from an April 1995 rating decision in which the RO denied an increased rating for PTSD and denied secondary service connection for Crohn's disease. The Board notes that in the April 1995 rating decision, the RO addressed the underlying question of service connection for Crohn's disease without specifically considering whether the previously denied claim could be reopened. This is significant to the Board because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter which must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). How the RO characterized the issue or what the RO may have determined in this regard is irrelevant. The initial question before the Board is whether new and material evidence has been presented. Id. The veteran appealed both issues and requested a hearing before a member of the Board at the RO. Thereafter, by statement dated in September 1999, the veteran indicated a desire to have a videoconference hearing in lieu of a travel board hearing at the RO. The veteran was advised in the letter which notified him of the date of his videoconference hearing that if he failed to appear, his appeal would continue as though he had withdrawn his request for a videoconference hearing. Thereafter, the veteran failed to appear for his scheduled videoconference hearing in November 1999. The Board notes that there is documentation in the claims folder which appears to raise an issue as to whether the veteran may be pursuing a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 and/or the Federal Tort Claims Act. Specifically, there is November 1997 letter from the veteran's representative which references a claim under the Federal Tort Claims Act. A subsequent report of contact dated in June 1998 which makes reference to a conversation with the veteran's representative concerning a claim under 38 U.S.C.A. § 1151 as well as a claim under the Federal Tort Claims Act. In addition, although the RO has not, as yet, adjudicated any issue involving a claim for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151, it appears that the RO has undertaken some development in that direction, including requesting and obtaining VA medical opinions. However, appellate review of the claims folder reveals that the only issues which are currently before the Board for appellate consideration are those identified on the title page of this decision. The issue of entitlement to an increased rating for PTSD will be addressed in the REMAND following the decision below. FINDINGS OF FACT 1. In March 1994, the Board, in a final decision, denied secondary service connection for Crohn's disease. 2. New and material evidence which is relevant and probative has been associated with the claims folder since the final Board decision in March 1994. 3. The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim for secondary service connection for Crohn's disease is plausible. CONCLUSIONS OF LAW 1. New and material evidence to reopen a claim of entitlement to secondary service connection for Crohn's disease has been presented. 38 U.S.C.A. §§ 1110, 5107, 5108, (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). 2. The veteran has not submitted a well-grounded claim of service connection for Crohn's disease as secondary to PTSD. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence 38 C.F.R. § 3.156(a) provides, in pertinent part, that there must be added to the record new and material evidence 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. The United States Court of Appeals for Veterans Claims (Court) has held that, once a denial of service connection has become final, the claim cannot subsequently be reopened unless new and material evidence has been presented. In a recent decision, the Court held that the decision of the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (which overruled the legal test previously used to determine the "materiality" element of the new and material evidence test) now requires a three-step process for reopening claims. Elkins v. West, 12 Vet. App. 209 (1999). Under the new Elkins test, VA must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the VA must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well-grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well-grounded, the VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. The Board is required to review all of the evidence submitted by an appellant since the last final denial of a claim on any basis, to include decisions by the RO or the Board which had refused, after having considered newly presented evidence, to reopen a previously disallowed claim because of a lack of new and material evidence. Evans v. Brown, 9 Vet. App. 273 (1996). At the time of the last prior final decision in March 1994, the Board denied secondary service connection for Crohn's disease on the basis that no physician of record in the case had provided a medical opinion linking the development of Crohn's disease to PTSD. Of record at the time of the Board decision was an opinion from one of the veteran's social workers, but a VA medical opinion in the claims folder which found no link between Crohn's disease and PTSD was afforded greater weight by the Board and the claim for secondary service connection for Crohn's disease was denied. Using the guidelines articulated above, the Board has reviewed the additional evidence which has been associated with the claims folder since the March 1994 Board decision. VA outpatient treatment records were received. Appellate review of these records reveals a statement from one of the veteran's treating physicians in June 1994 indicating that it was possible the veteran's Crohn's disease was related to his service-connected PTSD. The Board finds that this medical opinion is new and material evidence sufficient to reopen the veteran's claim of entitlement to secondary service connection for Crohn's disease. The basis of the denial in March 1994 was a determination that no medical doctor had indicated that there was a relationship between Crohn's disease and PTSD. Based on a VA medical opinion which indicated no such relationship existed, the claim was denied. The newly received medical opinion dated in June 1994 now suggests that such a relationship between Crohn's and PTSD could exist. Against this background, the veteran's claim is reopened. Justus v. Principi, 3 Vet. App. 510 (1992). Secondary Service Connection Based on De Novo Review of the Record In order to establish entitlement to secondary service connection for a disability, there must be objective evidence that establishes that such disability exists and that it is caused by or aggravated by a service connected disability. 38 U.S.C.A. §5107(a); 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet.App. 439 (1995). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). As explained below, we find the veteran's claim for secondary service connection for Crohn's disease is not well-grounded. The veteran has claimed that he should be service-connected for Crohn's disease as secondary to his service-connected PTSD. Initially, the Board reiterates that the veteran is required to present medical evidence of a current disability as a first step in establishing secondary service connection. In this case, the evidence at the time of the prior Board denial of secondary service connection for Crohn's disease in March 1994 included a diagnosis of Crohn's disease. However, medical evidence received subsequent to the March 1994 decision reveals that the veteran does not, in fact, have Crohn's disease, and likely never did have Crohn's disease. Of specific interest in this regard are several evidentiary records. During a VA hospitalization from June 26, 1997, through July 3, 1997, the veteran underwent a small bowel resection of a carcinoid tumor. The discharge summary noted a reported history of Crohn's disease since 1973. Following correspondence from the veteran to the RO in which the veteran questioned whether he had ever, in fact, had Crohn's disease, the RO requested a medical opinion from the Durham, North Carolina VA Medical Center (VAMC). The Chief of the medical administration service at the VAMC was asked to respond to several questions, including the following: (1) did the veteran ever have Crohn's disease? If so, is it at least as likely as not that Crohn's disease had its onset during the veteran's period of active military service from August 1964 to August 1968? (2) Is it at least as likely as not that the veteran's carcinoid tumor had its onset during the veteran's period of military service? (3) If the veteran was noted to have had Crohn's disease which did not have its onset during the veteran's period of service, did the veteran's service-connected PTSD cause or aggravate the Crohn's disease? (4) If the veteran's carcinoid tumor did not have its onset during service, was it caused by or aggravated by his service-connected PTSD? A response to the above was received from Wendy Z. Davis, M.D., Assistant Professor of Medicine in the Division of Gastroenterology at Duke University Medical Center. Dr. Davis indicated that there was no evidence that the veteran ever had Crohn's disease. His original diagnosis was made at an outside hospital, and seemed to have been based on x-ray findings and symptoms. By the time the veteran was evaluated at the VAMC, a mass was detected by CT scan which was subsequently resected and found to be carcinoid. Dr. Davis commented that the veteran's carcinoid syndrome was "masquerading" as Crohn's disease and that his carcinoid syndrome seemed to explain all of his current symptoms. The only reservation expressed was a CT scan on October 14, 1998, in which severe sigmoid colon thickening was noted to be evident. It was suggested that a biopsy could be performed to detect possible Crohn's colitis if warranted. In August 1999, a VA medical opinion was received from Jerome Feldman, M.D., the veteran's treating physician at Duke University who is also on staff at the Durham, North Carolina VAMC. Dr. Feldman indicated that it was unlikely that the veteran's carcinoid tumor was present during his military service as it was not identified until 24 years after his discharge in 1968. Dr. Feldman also commented that the veteran's PTSD had not caused or aggravated the veteran's carcinoid tumor. Because the medical evidence of record reflects no current diagnosis of Crohn's disease, the veteran has not presented a well-grounded claim of entitlement to secondary service connection for that disorder. As such, the appeal must be denied. ORDER 1. New and material evidence to reopen the claim of entitlement to secondary service connection for Crohn's disease has been submitted. Accordingly, to this extent, the appeal is allowed. 2. Secondary service connection for Crohn's disease, based on a de novo review of the record, is denied. REMAND The veteran's PTSD has been evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. However, subsequent to filing his claim, the criteria for evaluating mental disorders were changed, effective November 7, 1996. The RO has not had an opportunity to consider the veteran's claim under the new criteria. Where a 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 will apply. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Consequently, another examination was required in order to determine whether the benefit sought by the veteran was warranted under either the old or new rating criteria. The Board notes that the RO has attempted to schedule the veteran for a VA psychiatric examination for the purpose of evaluating the severity of the veteran's PTSD under the old and new rating criteria, but the veteran has refused to report for any psychiatric examination. By letter of March 6, 1997, the RO contacted the veteran after he failed to report for a scheduled VA examination on March 5, 1997. The veteran was asked to indicate whether he was willing to report for an examination. He was advised that if the requested information was not received within thirty days, it would be assumed that the veteran did not want an examination and his appeal would be considered based on the evidence of record. He was further informed that he would be notified when a decision had been made. However, at no point during the veteran's pending appeal has the RO provided him with information regarding the consequences of a failure to report for VA examination pursuant to the provisions of 38 C.F.R. § 3.655. There are a number of comments in the claims folder which reflect that the veteran does not understand the need for a new VA examination pertaining to an evaluation of the current severity of his PTSD. Contrary to what the RO had advised the veteran in the March 1997 letter about the evaluation of his claim based on the evidence of record were he to fail to report for a VA examination, 38 C.F.R. § 3.655 actually provides, in pertinent part, that with respect to a claim for an increased rating, a failure to report for a VA examination will result in a denial of the claim. The Court has held that, when the Board addresses in its decision a question that has not yet been addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the statement of the case (SOC) and/or SSOC provided to the claimant fulfills the regulatory requirements. See 38 C.F.R. § 19.29 (1999). If not, the matter must be remanded to the RO to avoid prejudice to the claimant. Bernard v. Brown, 4 Vet.App. 384, 393 (1993). In this regard, the Board notes that this is the first time that the veteran has been expressly notified that his failure to report for an examination could result in a denial of his claim for increase. He has not yet been afforded an opportunity to present argument and/or evidence on the matter of why he failed to report for the examination as scheduled, nor has he been provided a SOC or SSOC with respect to the provisions of 38 C.F.R. § 3.655. Consequently, to ensure him full due process of law and avoid the possibility of prejudice, the Board will remand the matter to the RO so that he can be given another opportunity to appear for the required examination and, if necessary, be issued a SSOC which contains a summary of the provisions of 38 C.F.R. § 3.655 and a discussion of how they affect his claim for an increased evaluation. 38 C.F.R. § 19.9 (1999). Under these circumstances, the issue of entitlement to an increased rating for PTSD is REMANDED to the RO for the following development: 1. The RO should contact the veteran and ask him whether he has received any treatment for his PTSD since May 1997, the date of the most recent VA hospitalization records currently in the claims folder. Based on his response, the RO should obtain a copy of all treatment records referable to the veteran's PTSD from the identified source(s), and associate them with the claims folder. 2. Following the receipt of the aforementioned evidence, if any, the RO should provide the veteran another opportunity to appear for a VA psychiatric examination. The RO should advise the veteran that if he does not appear for the scheduled VA examination, his claim will be adjudicated pursuant to the provisions of 38 C.F.R. § 3.655 (1999) which provides that a claim for an increased rating be denied upon failure to appear for a VA examination without good cause. The veteran should be accorded a comprehensive VA psychiatric examination to determine the current severity of his PTSD and to obtain information which will provide for its evaluation based on Court precedent, as well as under the new rating criteria for mental disorders. All indicated testing in this regard should be accomplished and all findings should be reported in detail. The complete claims folder, including a copy of this remand order, MUST be reviewed by the examiner and he/she should indicate that a review of the claims folder was accomplished. Following examination of the veteran and review of the claims folder, the examiner must comment as to the degree to which the veteran's PTSD affects his ability to establish and maintain effective or favorable relationships with people (social impairment) and the degree to which the psychiatric symptoms result in reduction in initiative, flexibility, efficiency and reliability levels (industrial impairment). Specific findings as called for by applicable rating criteria should be made. 38 C.F.R. § 4.132 (1996); 38 C.F.R. § 4.130 (1999). 3. If the veteran reports for the VA examination requested in numbered paragraph 2 above, the RO should adjudicate the veteran's claim on the merits, with consideration of both the old and new rating criteria for mental disorders. See Karnas, supra. If the veteran does not report for the scheduled examination and does not provide an adequate reason for his failure to report, the RO should adjudicate the veteran's claim under 38 C.F.R. § 3.655 (b) and provide a supplemental statement of the case (SSOC) explaining that determination. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the aforementioned development action has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. The RO should then review the record and the issue should be re-adjudicated. If the determination remains adverse to the veteran, the appellant should be provided with a SSOC and given the opportunity to respond within the applicable time. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for further 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. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals