Citation Nr: 0731287 Decision Date: 10/04/07 Archive Date: 10/16/07 DOCKET NO. 04-31 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for service connection for nosebleeds. 2. Entitlement to service connection for nosebleeds. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Kelley, Associate Counsel INTRODUCTION The veteran (also referred to as "appellant") served in the Reserves from November 1965 to January 1967 and on active duty from January 1967 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision from the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). The RO denied reopening on the basis that new and material evidence had not been received. FINDINGS OF FACT 1. A July 1974 rating decision denied service connection for nosebleeds; notice of this decision was issued on July 19, 1974; and the appellant did not file a notice of disagreement with this decision within one year of notice of the decision. 2. The evidence associated with the claims file subsequent to the July 1974 decision is new and relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The veteran's nosebleeds were not noted on the service entrance examination. 4. Clear and unmistakable evidence demonstrates that the veteran's nosebleeds existed prior to service. 5. The veteran's nosebleeds permanently increased in severity during service. CONCLUSIONS OF LAW 1. The July 1974 decision became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2006); 38 C.F.R. §§ 20.302, 20.1103 (2006). 2. New and material evidence sufficient to reopen the claim for service connection for nosebleeds has been received. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2006); 38 C.F.R. § 3.156(a) (2007). 3. The veteran's nosebleeds clearly and unmistakably existed prior to his entry into military service, and the presumption of soundness at induction is rebutted. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.306(b) (2007). 4. The veteran's pre-existing nosebleeds were aggravated by active service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). Collectively, VA's notice and duty to assist letters dated in December 2002, April 2003, July 2004, and August 2004 satisfied VA's duty to notify under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159, as the letters informed the veteran of what evidence was needed to establish the benefits sought (both reopening of the claim and service connection), of what VA would do or had done, and what evidence he should provide, and informed the veteran that it was his responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim. The Board is not aware of the existence of additional relevant evidence in connection with the appellant's claim that VA has not sought. VA medical records and private treatment records and medical opinion have been associated with the record. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2007), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The appellant was not provided with notice of the type of evidence necessary to establish an effective date or increased rating if service connection is granted on appeal. However, when implementing the Board's grant of service connection, the RO will address any notice defect with respect to the rating and effective date. Significantly, the veteran retains the right to appeal the initial disability rating and effective date assigned by the RO. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements, letters from his family members and acquaintances, and arguments presented by the representative organization. Because the full benefits sought on appeal are being granted by this Board decision, no further notice or assistance to the appellant is required. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi,16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). New and Material Evidence to Reopen Service Connection for Nosebleeds Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. Under 38 U.S.C.A. § 5108, however, "[i]f 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." Under 38 C.F.R. § 3.156(a), the revised provisions of which are effective in this case because the veteran's November 2002 claim to reopen service connection for nosebleeds was received after August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decision makers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." In this case, in a July 1974 rating decision, the RO denied the veteran's claim for service connection for nosebleeds on the basis that they pre-existed service for two years, and that the service medical record evidence did not show a worsening of disability during service. Notice of this decision was issued on July 19, 1974. The veteran did not submit a timely notice of disagreement within a year of the decision; therefore, the July 1974 denial of service connection for nosebleeds became "final" under 38 U.S.C.A. § 7105(c) and 38 C.F.R. § 20.1103. The question for the Board now is whether new and material evidence has been received by VA in support of the veteran's claim since the issuance of the July 1974 rating decision. Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim, regardless of the RO's determination on the question of reopening, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). After reviewing the evidence, the Board finds that the evidence received since the unappealed July 1974 decision that is new relates to the questions of an in-service event or injury and aggravation of the appellant's pre-existing nosebleeds in service. New evidence includes the appellant's private treatment, medical records and competent medical opinion for the time frame of February 1988 to June 2004, VA treatment records of April 2003, and statements of the veteran, the veteran's family, and his acquaintances dated in April, May, and August 2004. This evidence relates to the question of whether there was a permanent worsening of pre- existing disability of nosebleeds during service, a fact that was not established at the time of July 1974 rating decision. The additional evidence tends to support the appellant's contention that his nosebleeds were aggravated by his active service. The Board finds that this additional evidence raises a reasonable possibility of substantiating the claim for service connection for disability referred to as nosebleeds. Consequently, the Board finds that VA has received new and material evidence to reopen the veteran's claim for service connection for nosebleeds, and the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection for Nosebleeds Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.1(k), 3.303(a) (2007). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Where no defects are "noted" at service entrance, clear and unmistakable evidence showing that the disability manifested in service existed before service is required to rebut the presumption of sound condition. 38 U.S.C.A. § 1111. A preexisting injury or disease will be considered to have been aggravated by active wartime service, where there is an increase in disability during such war service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected, unless the disease is otherwise aggravated by service. 38 C.F.R. § 3.306(b). In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that the correct standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) the appellant's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. See also VAOPGCPREC 3-2003. Turning to the merits of the veteran's reopened claim for service connection for nosebleeds, the Board finds that the veteran's nosebleeds were not "noted" on the service entrance examination. The veteran's pre-induction examination report of October 1965, May 1966 release from active duty training in the Reserves report, and his October 1966 annual Reserve examination report were all silent for any mention of nosebleeds. Because the nosebleeds were not "noted" at the time of the 1965 and 1966 examinations, the veteran is entitled to the presumption of sound condition. 38 U.S.C.A. § 1111. Service medical records of April 1966 and January 1967 include statements by the veteran that "there has been no significant change in my physical condition since my last physical examination." A March 1968 service medical record entry reveals that the veteran reported a two year history persistent nosebleeds (epistaxis), and clinical examination revealed some epistaxis. An April 1968 service medical record entry reflects a two year history of suffering from epistaxis, that the veteran's ship has just returned from sea, and the condition had recently worsened, so was seeking medical treatment. In April 1968, the veteran reported he had two nosebleeds per day. In May of 1968 the veteran was treated at a military clinic with cauterization for nosebleeds. The veteran's service separation examination of September 1968 notes a past problem of nosebleeds. Based on this evidence, the Board finds that the presumption of sound condition is rebutted by clear and unmistakable (obvious and manifest) evidence that the veteran's nosebleeds pre-existed service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303. The next question is whether clear and unmistakable evidence shows that the veteran's preexisting nosebleeds were not aggravated during service. The appellant's service medical records of April 1968 state the epistaxis had recently worsened so he experienced two nosebleeds per day. The May 1968 service medical record entry reveals that cauterization was required to treat the nosebleeds. The veteran's separation examination records of September 1968 also indicate nosebleed problems, although they were not indicated to be a problem in September 1968. While temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened, in this case the veteran did not have temporary or intermittent flare-ups in service, but rather an actual worsening of nosebleeds, as evidence by the in-service notation of increased worsening by April 1968 and post-service medical evidence of continued medical treatment for nosebleeds. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For example, the veteran's June 1974 claim for compensation indicates that he had private treatment for his nosebleeds within a year of service separation, and from 1969 through 1974. Private treatment records from February 1988 through August 2002 indicate that the veteran had increasing problems with epistaxis, was periodically cauterized for his nosebleeds, and was treated with medication. Private opinion of August 2002 noted that the veteran's nosebleeds, which had led to multiple operations, were probably aggravated by his work in cold lockers at the grocers, and questioned whether the veteran should take an early medical retirement. The private physician opined that the veteran would continue to have recurring bleeding in unexpected situations. An April 2003 VA primary care medical record indicated that the veteran's nosebleeds had been treated with several surgeries, but without response. In March 2004, a private physician noted that the veteran's congenital nosebleeds worsened during service, while he was working in confined quarters with noxious fumes and paint that irritated his nose to the point that he began having recurrent epistaxis, which has been a lifelong problem. In June 2004, the same physician again opined that the veteran's nosebleeds were worsened by the noxious chemical exposure in the military, and that it was reasonable that his condition was "indeed exacerbated by his exposures." Further evidence to support the veteran's contention that his nosebleeds were aggravated in service are April 2004 letters from his siblings and acquaintances to the effect that, while the veteran had nosebleeds as a child and an adolescent, the nosebleeds increased in intensity in service. One of his sisters wrote in May 2004 that, when the veteran went into service, he began to have constant problems with bleeding when he was assigned to work with paints and paint thinners. Based on the evidence, the Board finds that the evidence is not clear and unmistakable evidence that the veteran's pre- existing nosebleeds did not permanently increase in severity in service. For these reasons, the Board finds that the veteran's preexisting nosebleeds were aggravated while in active service. ORDER Service connection for nosebleeds is reopened, and granted on the merits. ____________________________________________ JEFFREY PARKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs