BVA9506141 DOCKET NO. 92 08-983 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder. 2. Entitlement to service connection for hypertension. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a malaria. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right hip disorder. 6. Entitlement to an increased rating for fungus of the feet and hands, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran's active military service extended from August 1970 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. That rating decision, in part, continued a 10 percent rating for fungus of the feet and hands, which had been in effect since May 1984. The decision also determined that the veteran had not submitted new and material evidence to reopen claims of service connection for post traumatic stress disorder (PTSD), hypertension, a back disorder, a right hip disorder and malaria. The case was previously before the Board in October 1993. The Board determined that the veteran had made a timely appeal for service connection for hypertension and that he had presented new and material evidence to reopen his claim of service connection for PTSD. The issues at that time were deemed to be: 1. Entitlement to service connection for PTSD, 2. Entitlement to service connection for hypertension; 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder; 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for malaria; 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right hip disorder; and 6. Entitlement to an increased rating for fungus of the feet and hands, then rated as 10 percent disabling. The Board remanded the case for records and examination of the veteran. In its May 1994 rating decision, the RO deferred action on the claim for service connection for PTSD, noting that it was awaiting information from the United States Army and Joint Services Environmental Support Group (ESG). The subsequent supplemental statements of the case, sent in May and August 1994, did not cover the issue of service connection for PTSD. The August 1994 rating decision granted a 30 percent rating for the service-connected fungus of the hands and feet and denied a higher rating. A September 1990 statement of the case had provided the veteran with the criteria for the next higher rating. The veteran continued to appeal for a higher rating and this matter remains before the Board. The veteran disagreed with the effective date of the increased rating for the service-connected skin disorder. He was sent a statement of the case on the issue of entitlement to an earlier effective date for the increased rating. An appeal is not of record. Since the issue has not been developed for appellate consideration, it is not properly before the Board at this time. This decision reopens and remands the issues of entitlement to service connection for back and hip disorders. It also requires further action by the RO in accordance with the previous remand of the PTSD issue. Action on the other issues is deferred so that there will not be a piecemeal determination on the veteran's claims. See Harris v. Derwinski, 1 Vet.App. 180 (1991), Hoyer v. Derwinski, 1 Vet.App. 208 (1991). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in denying his request to reopen the claims of service connection for a back disorder and a right hip disorder. He reports that a back injury in training an again in May 1972 resulted in chronic disability. He reports a hip injury in May 1972 and asserts that the service medical records document "hip pain". He explains that he was not treated again because he changed duty stations. A private physician is said to have begun treating him for a hip disorder in 1978. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been submitted to reopen the claims of entitlement to service connection for back and right hip disorders. FINDINGS OF FACT 1. In August 1984, the RO denied service connection for a back disorder and a hip disorder, but the veteran did not file a timely appeal. 2. The August 1984 rating decision specified that the claimed disabilities were not noted during service and the record at that time did not show a chronic back or hip disability. 3. Since the August 1984 rating decision, additional service medical records, revealing back and right hip symptoms during service, were obtained. 4. Since the August 1984 rating decision, additional medical records, including a December 1993 VA x-ray study disclosed chronic changes in the lumbar spine. 5. Since the August 1984 rating decision, additional medical records, including private records of 1988 and 1989 disclosed chronic disability of the right hip. 6. The evidence received since the August 1984 rating decision, when viewed in the context of all the evidence of record, raises a reasonable possibility of changing the outcome of the 1984 RO decision with respect to the veteran's back disorder and hip disorder. CONCLUSIONS OF LAW 1. Evidence received since the RO's August 1984 rating decision denying service connection for a back disorder is new and material, and the veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. Evidence received since the RO's August 1984 rating decision denying service connection for a hip disorder is new and material, and the veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The August 1984 rating decision by the RO included the denials of service connection for back and hip disorders. The veteran did not make a timely appeal and the decision became final. 38 U.S.C.A. § 7105(c) (West 1991). Nevertheless, a final decision on a claim may be reopened and the claim reconsidered on the basis of all the evidence of record, if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 1991). 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 (1994). To be "new," the additional evidence must be more than merely cumulative. The additional evidence must also be "material." That is, it must be relevant and probative and there must be a reasonable possibility that, when viewed in the context of all the evidence both new and old, the additional evidence would change the outcome. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991), Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). With this requirement in mind, the Board has reviewed the entire record to determine if the veteran has submitted new and material evidence to reopen the claim. In the August 1984 rating decision, the RO stated that "None of the disabilities alleged by the veteran were noted in service." There were no reports pertaining to the back or hips in the service medical records which the RO had in the claims folder. Pursuant to the Board's October 1993 remand, the RO obtained additional service medical records. These records show back and right hip symptoms in December 1970. The veteran has also submitted copies of May 1972 service medical records which show back complaints and a note which the veteran interprets as referring to his hip. Also, at the time of the August 1984 rating decision, the record did not clearly show any chronic back or hip disabilities. Since then, extensive private medical records have been obtained which show necrosis of the right hip requiring surgery and medical after care. Also, a December 1993 VA examination included a x-ray study which disclosed hypertrophic changes in the vertebral bodies and discogenic changes in the lumbar spine. At the time of the August 1984 rating decision, there was no evidence of back or hip symptoms during service or of chronic back or hip disability after service. There is now. This evidence is new and material as it could plausibly change the outcome of these claims. Therefore, the claims must be reopened and considered on the basis of all the evidence both old and new. ORDER The claims of entitlement to service connection for back and right hip disorders are reopened. The appeal is to that extent, allowed. REMAND The service medical records show right hip complaints. Several of the veteran's private physicians have commented that his right hip disability is unusual for someone of his age. In his March 1989 letter, M. A. Richfield, M.D., indicated that the hip disorder had a traumatic origin. June 1992 notes of W. E. Lowry, M.D., indicate that the aseptic necrosis of the right hip could possibly be due to the veteran's sickle cell trait. The new evidence should be reviewed by a medical specialist who should provide an opinion as to any relationship between the incidents in service and the current orthopedic disorders involving the veteran's back and hip. In its May 1994 rating decision, the RO deferred action on the claim for service connection for PTSD, noting that it was awaiting information from the ESG. The response has been received and is in the claims folder. It appears that the ESG is requesting additional information in connection with the veteran's PTSD claim. The RO should make efforts to obtain the information requested by ESG. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should request from the veteran a statement containing as much detail as possible regarding the stressors to which he was exposed during service. The veteran should be asked to provide the specific information requested by ESG, which he might have. This includes specific details of the claimed stressful events during service, such as the most specific date possible, type and location of the incident, numbers and full names of casualties, unit designations to the company level and other units involved. The veteran should be told that the information is necessary to obtain supportive evidence of the stressful events and that failure to respond may result in adverse action. 2. Regardless of the veteran's response, the RO should send a copy of the DA Form 20, which is in the claims folder, to ESG at 7798 Cissna Road, Suite 101, Springfield, VA 22150-3197. The RO should point out that the veteran served with the 82nd Engineer Company, not the 82nd Engineer Battalion. See DVB Circular 21-86-10, particularly, paragraph 4(d). ESG should be requested to provide any information which might corroborate the veteran's alleged stressors. 3. The veteran should be accorded an examination by a VA orthopedist. The report of examination should include a detailed account of all manifestations of joint pathology found to be present. All necessary tests and X-rays, including those necessary to determine the nature of any sickle cell trait, should be conducted and the examiner should review the results of any testing as well as the opinions of the veteran's private physicians prior to completion of the report. Special attention should be given to the presence or absence of pain, any limitation of motion, instability and weakness. The examiner should express an opinion as to the probability that the right hip pain noted during service was a manifestation of the subsequently diagnosed necrosis. The examiner should express an opinion as to the probability that the hip necrosis was due to injury or sickle cell trait. The examiner should also express an opinion as to the probability that the hip symptoms during service reflected an increase in the severity of the veteran's sickle cell trait. The examiner should also express an opinion as to the probability that the back complaints in service were manifestations of his current back disorder. A copy of this Remand and the claims folder must be made available to and be reviewed by the examiner prior to the examination. The orthopedist should provide complete rationale for all conclusions reached. 4. The RO should review the examination report and determine if it is adequate for rating purposes and in compliance with this Remand. If not, the report should be returned to the examiner for corrective action. 5. After the above actions have been completed, the RO should adjudicate the claims for service connection for back and right hip disorders on the basis of all evidence of record, both old and new. Following completion of the requested development, the RO should review the veteran's claims. If the decision remains unfavorable, the veteran and representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until further notice is issued. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).