Citation Nr: 0710249 Decision Date: 04/10/07 Archive Date: 04/16/07 DOCKET NO. 03-19 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for the residuals of a pelvic fracture. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for the residuals of a left leg fracture, including left leg numbness. 3. Entitlement to service connection for a herniated disc, to include left leg numbness (also referred to herein and "low back disability"). 4. Entitlement to service connection for the residuals of a left foot muscle injury (referred to herein simply as a "left foot disability"). 5. Entitlement to service connection for brain damage. 6. Entitlement to service connection for a right leg scar. 7. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jonathan B. Kramer, Counsel INTRODUCTION The veteran served on active duty service from August 1991 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the veteran's claims on appeal. The Board notes that the RO has separately adjudicated the issues of service connection for left leg numbness, service connection for a herniated disc (low back disability) and whether new and material evidence has been received to reopen the claim of service connection for the residuals of the left leg fracture. However, the Board finds that left leg numbness claim is part and parcel of the claims for residuals of a left leg fracture, as well as part and parcel of the low back disability claim. Therefore, the issues stated in the caption above reflect this characterization. The following issues are addressed in the REMAND portion of the decision below: entitlement to service connection for a right leg scar, service connection for a left foot disability, and entitlement to a permanent and total disability rating for pension purposes. These issues are REMANDED to the Agency of Original Jurisdiction via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran was discharged from service for disabilities incurred during service due to willful misconduct and not in the line of duty. These disabilities included residuals of a pelvic fracture, residuals of a left leg fracture, residuals of a low back injury to include a herniated disc, and "brain damage." 2. By a December 1997 rating decision, the RO denied the veteran's claims of entitlement to service connection for the residuals of a pelvic fracture and the residuals of a left leg fracture on the basis that these disabilities were not incurred in the line of duty. The veteran was notified of his appellate rights but did not appeal. 3. The evidence received subsequent to the December 1997 rating decision was previously submitted to the agency, does not relate to an unestablished fact, and is cumulative or redundant of evidence previously before the agency. 4. The evidence of record fails to show that veteran's low back disability, to include left leg numbness, is related to injury or disease sustained in the line of duty. 5. The medical evidence does not show that the veteran currently has brain damage or that brain damage, if present, was incurred in the line of duty. CONCLUSIONS OF LAW 1. The December 1997 rating decision denying service connection for the residuals of a pelvic fracture and left leg fracture is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2006). 2. New and material evidence has not been received to reopen the claims of service connection for the residuals of a pelvic fracture and left leg fracture. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2006). 3. Entitlement to service connection for a low back disability is not established. 38 U.S.C.A. §§ 105, 1101, 1110, 1111, 1112, 1113, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.1; 3. 203; 3.301;, 3.303, 3.304, 3.307, 3.309 (2006). 4. Entitlement to service connection for brain damage is not established. 38 U.S.C.A. §§ 105, 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3. 203, 3.301, 3.303, 3.304, (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural and Factual Background The veteran's service personnel and medical records show that the veteran sustained serious multiple injuries in August 1995 due to a fall on top concrete from a third floor window ledge precipitated by alcohol intoxication deemed to be willful misconduct and not incurred in the line of duty. The veteran's DD 214 shows that he received an honorable discharge, but was separated for disability not incurred in the line of duty. By letter dated December 20, 1995, the Army informed the veteran that an investigation indicated that the injuries sustained were due to the veteran's "willful misconduct" and were "not in line of duty." The September 1995 investigation report explained that the veteran was treated for multiple injuries of the leg, rib, pelvic area, collapsed lung, spinal damage, internal bleeding, and brain damage. The Board notes that the investigation report is not entirely complete in that some of the exhibits appear to missing. However, there is enough information, together with the service medical records, to proceed with a decision on all issues rather than remand, and for the reasons explained herein. Indeed, the service medical records show that the veteran underwent extensive treatment and therapy for his fractured femur, fractured pelvis, and lumbar spine injuries sustained in the fall. In November 1997 the RO issued an Administrative Decision, which determined that the injuries the veteran sustained as a result of the August 1995 fall was due to willful misconduct and not incurred in the line of duty. The veteran was notified of this decision but did not appeal. Hence, that decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R §§ 20.200, 20.201, 20.202, 20.302, 20.1103. By a December 1997 rating decision, the RO denied the veteran's claim of service connection for the residuals of a pelvic fracture and a left femur fracture. This rating decision explained that based on the November 1997 administrative decision, the benefits sought could not be granted because the injuries to the pelvis and left leg that occurred in service were the result of willful misconduct and were not incurred in the line of duty. The veteran was afforded a notice of his appellate rights with this decision. The veteran did not appeal and that decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R §§ 20.200, 20.201, 20.202, 20.302, 20.1103. By a September 2002 rating decision, the RO appears to have considered the veteran's claims of entitlement to service connection for the residuals of a pelvic fracture and left leg fracture on a de novo basis, but denied those claims on the same basis as that of the 1997 rating decision. In this decision the RO also denied the following claims: service connection for herniated disc (lumbar spine disability); service connection for left leg numbness; service connection for a muscle injury of the left foot; service connection for brain damage; service connection for a right leg scar; and entitlement to a permanent and total disability rating for pension purposes. The basis for these denials was that it was determined that the claimed disabilities were incurred as a result of willful misconduct, specifically the fall while intoxicated, and that the injuries sustained were not incurred in the line of duty. The veteran perfected a timely appeal to this rating decision. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury was incurred in service is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after military service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, where a veteran who served for ninety (90) days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases (such as arthritis) to a degree of 10 percent or more within one year from separation from service, such disease may be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, the Board notes that an injury incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1; 3.301. "Willful misconduct" is an act involving conscious wrongdoing or known prohibited action involving deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions that would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately or immediately in disability, the disability is considered the result of the person's misconduct. 38 C.F.R. § 3.301(c)(2) An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). As was previously recounted, the service department determined that injuries arising out of the fall in August 1995 were due to willful misconduct and not in the line of duty. The Board notes that service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding upon VA. Thus, if the United States service department determines that the appellant's service was not in the line of duty, the applicant's only recourse lies within the relevant service department, not VA. 38 C.F.R. § 3.203(c); Soria, Supra. II. New and Material Evidence for Residuals of Fractured Pelvis and Left leg The September 2002 rating decision indicates that the RO reopened and then denied the veteran's claims of entitlement to service connection for the residuals of a pelvic fracture and left leg fracture on the same basis it did in the December 1997 rating decision. In any case, the question of whether new and material evidence has been or must be received to reopen the claim on appeal is a question which must be addressed by the Board regardless of the RO's action because it goes to the Board's jurisdiction to adjudicate the underlying merits of the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Under applicable law and regulations, a claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. If the claim is thus reopened, it will be reviewed on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. §§ 5108, 7105 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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. 38 C.F.R. § 3.156(a) (2006). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening the appellant's claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In renewing his claims for service connection for the residuals of a pelvic fracture and left leg fracture, the veteran has submitted written statements contending that his fall during service in August 1995 was not due to alcohol intoxication and that the Army's determination that he was intoxicated was wrong and based entirely on hearsay. The evidence of record at the time of the December 1997 denial consisted of the veteran's service medical records and service personnel records, which show that the only injuries to the pelvis and left leg during service occurred as a result of the August 1995 fall that was determined not to be in the line of duty. Since that time, VA and private medical records have been received showing that the veteran continues to complain of the residuals of the fractures of the left leg and pelvis. While this evidence is new in that it was not of record before, it is not material because it does not amount to evidence relating to an unexplained fact, either by itself or in connection to evidence previously of record. While the new medical evidence indicates that the veteran may still be suffering from the residuals of fractures to the pelvis and the left leg, such evidence does not overcome the basis of the November 1997 administrative decision and December 1997 rating decision, which collectively state that the disabilities of the pelvis and left leg arose out of willful misconduct and were incurred not in the line of duty. Nor do the veteran's bare assertions that the Army's investigation was flawed, which are unsubstantiated, overcome the validity of the Army's line of duty and willful misconduct determinations. The service records show that the August 1995 incident was fully and fairly investigated. In any case, the validity of the service department's determinations in this regard must be accepted by VA. 38 C.F.R. § 3. 203. See generally Duro v. Derwinski, 2 Vet. App. 530; Soria v. Brown, 118 F.3d 747. Indeed, the veteran was provided with an opportunity to appeal the Army determination, but there is no evidence in his service records indicating he appealed or otherwise contested such determination. Regardless, the veteran's service records show that the veteran was discharged from service due to disability, including the pelvic and hip fractures, which that are shown to be incurred not in the line of duty. As the veteran has failed to provide new and material evidence to reopen his claims, the claims are denied. The Board emphasizes that veteran has been repeatedly advised by the RO since that he needed to submit new and material evidence in order to reopen his claims or service connection for the residuals of a pelvic fracture and a left leg fracture. What is lacking is credible medical or lay evidence showing that the veteran left leg and pelvic disabilities are related to some incident other than the August 1995 fall. As explained above, the Board concludes that new and material evidence has not been received to reopen the veteran's claims of entitlement to service connection for the residuals of a pelvic fracture and a left leg fracture. III. Service Connection for a Low Back Disability The veteran's service medical records show that he sustained severe lumbosacral plexopathy affecting all roots L2-S2, with neurological deficits, as a result of the fall in August 1995. The veteran underwent treatment for this injury in service until he was discharged. Post-service VA and private medical records reveal that the veteran has continued to suffer from the residuals of this injury, including pain and various neurological symptoms. These symptoms appear to be related to the fall that occurred during service, and the veteran does not claim otherwise. Indeed, the veteran asserts that the August 1995 fall was in the line of duty and not misconduct, and that it resulted in his current back disability. However, as has been already explained herein, injuries resulting from the fall in August 1995 were found by the Army to be the result of willful misconduct and not in the line of duty. In accordance with VA regulations, the RO rendered an Administrative decision in November 1997, which determined that the injuries the veteran sustained as a result of the August 1995 fall was due to willful misconduct and not in the line of duty. See 38 C.F.R. §§ 3.1(m) and (n), 3.301. The veteran did not express disagreement with this decision or otherwise complete a substantive appeal, so the decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R §§ 20.200, 20.201, 20.202, 20.302, 20.1103. The Board has considered the veteran's written statements asserting that his fall during service in August 1995 was not due to alcohol intoxication and that the Army's determination that he was intoxicated was wrong and based entirely on hearsay. However, the Board reiterates that with respect to service department's determinations as to qualifying service, including willful misconduct and line of duty determinations, such determinations must be accepted by VA. 38 C.F.R. § 3. 203; See generally Duro v. Derwinski, 2 Vet. App. 530; Soria v. Brown, 118 F.3d 747. Based on the medical evidence of record, the nature and effect of the service department determinations, and the applicable laws and regulations, service connection for a low back disability must be denied as a matter of law. Where the law and not the evidence is dispositve, the claim should be denied because of the absence of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In view of the Board's determination that this claim must be denied as a matter of law, the veteran is not entitled to obtain a VA examination under 38 U.S.C.A. § 5103A(d) because, under the circumstances, no reasonable possibility exists that providing such an examination would aid in substantiating the claim. Thus, the analysis under McLendon v. Nicholson, 20 Vet. App 79 (2006) is not required because a medical opinion linking the veteran's current low back disability to the August 1995 fall would not provide a basis under which service connection could be awarded. IV. Service Connection for Brain Damage The service department's report of investigation, dated September 10, 1995, indicates that among the injuries sustained in the veteran's August 1995 fall was brain damage. However, a subsequent service department report entitled "Statement of Medical Examination and Duty Status," notes that the fall resulted in, "possible neurological deficit," among other injuries, but there was no reference to brain damage. The Board further observes that the service medical records subsequent to the August 1995 incident do not indicate diagnosis of, or treatment for, brain damage. Moreover, a review of the post-service medical records reveals no evidence that the veteran complained of, was diagnosed with, or treated for, any sort of brain damage or injury. An October 1998 private psychological evaluation report shows that the veteran underwent an extensive psychological assessment and was diagnosed with depressive disorder. The evaluation report notes the veteran's history of the August 1995 fall, which the veteran stated included a head injury, but the report did not link his psychological problems to brain damage. Upon review of the evidence of record in conjunction with the applicable laws and regulations, the Board finds that service connection for brain damage is not warranted. In evaluating whether direct service connection for brain damage is warranted, the Board reiterates that in order to be granted service connection, it must be shown that the veteran suffers from a current disability resulting from an injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. But there is no medical evidence that the veteran currently suffers from brain damage. It is now well-settled that in order to be considered for service connection, a claimant must first have a disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Therefore, as the weight of the medical evidence shows that the veteran does not have a brain damage, service connection for brain damage cannot be granted. The Board has considered the veteran's written statements submitted in support of his contention that he currently has brain damage resulting from service. However, these statements do not serve as competent medical evidence of a current diagnosis of a brain damage. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). There is simply no medical evidence to support his contention that he currently has brain damage. Based on the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for brain damage. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is aware that the veteran was not provided with a VA examination in regard to his claim of entitlement to service connection for brain damage. However, a VA examination is not warranted for this claim. Although there is evidence that the veteran had a fall during service in August 1995 that could have caused brain damage, no competent evidence of current brain damage has been presented. In any case, the Board notes that even if the veteran was shown by medical evidence to suffer from brain damage, the veteran claims the alleged brain damage was caused by August 1995 fall. But as has already been explained in detail herein, the RO's August 1997 final Administrative Decision determined that any injuries the veteran sustained as a result of the August 1995 fall was due to willful misconduct and not in the line of duty. Thus, entitlement to service connection for brain damage would not be warranted based on the theory claimed by the veteran as a matter of law. 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1; 3.301; 3. 203; See generally Duro v. Derwinski, 2 Vet. App. 530; Soria v. Brown, 118 F.3d 747; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the veteran is not entitled to obtain a VA examination under 38 U.S.C.A. § 5103A(d) because, under the circumstances, no reasonable possibility exists that providing such an examination would aid in substantiating the claim. Thus, the analysis under McLendon v. Nicholson, 20 Vet. App 79 (2006) is not required because a medical examination and opinion establishing the existence of brain damage and linking it to the veteran's August 1995 fall would not provide a basis under which service connection could be awarded. V. VCAA Compliance In rendering this decision, the Board has considered the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendancy of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, 19 Vet. App. 473. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. VA satisfied its duty to notify by means of letters from the agency of original jurisdiction (AOJ) to the appellant dated in May 2002 and June 2002. These letters were issued prior to the initial AOJ decision in September 2002. The letters informed the appellant of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Moreover, the veteran was afforded a meaningful opportunity to present evidence and argument and to participate in his appeal. In this case, the veteran provided written statements, presented private medical evidence, and relevant VA clinical records were also associated with the claims file. Variously dated and subsequent VA notice letters, and rating actions, again informed the veteran of all the applicable laws and regulations pertinent to his claim and the reasons his claim was denied. Accordingly, the Board holds that the veteran, in fact, was provided with a meaningful opportunity to participate in his claim by VA. All available VA and other records that are known to be relevant and that still exist have been obtained and considered by the AOJ and the Board consistent with the duty to assist the veteran in compliance with 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The veteran presented written arguments in support of his claims and was assisted by his accredited representative. The RO issued a supplemental statement of the case (SSOC) in February 2006, essentially readjudicating the veteran's claims based on new evidence developed and new arguments advanced. Hence, as the claim was readjudicated following the provision of adequate notice, any error as to the timing of the notice is nonprejudicial. See Prickett v. Nicholson, No. 04-0140 (U.S. Vet. App. Sept. 11, 2006) (As long as a determination was made following the notice letter, there is no need to draw a distinction as to whether an adjudicatory decision was issued in a rating decision or a statement of the case.) Thus, the Board concludes that any defect in notice, if it were held to exist, would be rendered harmless in the present case. Mayfield v. Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). As all the requirements of the duty to notify and assist the veteran have been met, appellate review is appropriate. In addition, as this case involves the issues of whether new and material evidence has been submitted to reopen the service connection claims of entitlement to the residuals of a pelvic fracture and left leg fracture, additional notice must be provided pursuant to Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). In Kent, the Court determined that VA must advise a claimant as to the type of evidence needed to reopen a claim, i.e., the meaning of the terms "new" and "material", in addition to what is required to substantiate each element of a service connection claim. See also Dingess/Hartman, supra. The Court further held that, under 38 U.S.C. § 5103(a), VA is required to notify the appellant of what constitutes "material" evidence in the context of his or her particular claim to reopen, which includes notice as to the basis on which the underlying claim for service connection was previously denied by VA. In the present case, the preadjudicatory June 2002 VCAA notice letter explained the requirements for reopening his previously denied claims for service connection. In this letter, the RO provided the veteran with definitions of terms "new and "material" in terms of the evidence necessary to reopen a previously denied claim, and described what evidence was needed to support his service connection claim. Hence, the veteran has been afforded the notice that is required under the VCAA and Kent. ORDER New and material evidence not having been received, the veteran's request to reopen the claim of entitlement to service connection for the residuals of a pelvic fracture is denied. New and material evidence not having been received, the veteran's request to reopen the claim of entitlement to service connection for the residuals of a left leg fracture, including left leg numbness, is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for brain damage is denied. REMAND For the reasons discussed below, the Board finds that the duty to assist under the VCAA requires further development for issues of entitlement to service connection for a right leg scar, service connection for a left foot disability, and entitlement to a permanent and total disability rating for pension purposes. Therefore, these issues must be REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC, for this purpose. In regard to the right leg scar claim, the service medical records (SMRs) include a July 1996 clinical record revealing the veteran had a lesion on the right leg that could have been caused by venous stasis secondary to edema for severe sunburn sustain one month prior. Post-service clinical records reveal persistent right leg ulcerations, cellulitis, and varicose veins. Moreover, a July 2004 VA clinical record indicated that the right leg varicose veins with cellulitis to the anterior tibia area in 1996 and 2004 were possibly related to venous stasis. In view of the medical evidence, which shows that the veteran had a right leg skin lesion unrelated to the August 1995 fall and that subsequent to service the right leg skin lesions have continued, and considering that a comprehensive VA examination has not been conducted to evaluate whether there is any connection between the current right leg symptoms and that noted in service, the Board finds that a VA examination is required to fully and fairly adjudicate the claim in compliance with the duty to assist under 38 U.S.C.A. § 5103A. Concerning the claimed left foot disability, the SMRs include the following: a March 1991 enlistment examination report noting that the veteran has pes cavus; and a February 1996 clinical record documenting that the veteran had claw toes. Post-service private medical records include an April 1999 clinical record assessing the veteran with hammertoes and mallet toe deformity affecting the left foot. In view of the medical evidence, which shows that the veteran had pes cavus and claw foot unrelated to the August 1995 fall and that subsequent to service the left foot displayed hammertoe and mallet toe deformities, and considering that a comprehensive VA examination has not been conducted to evaluate whether there is any connection between any current left foot symptoms and the findings noted in service, the Board finds that a VA examination is required to fully and fairly adjudicate the claim in compliance with the duty to assist under 38 U.S.C.A. § 5103A. The Board further notes that as the issue entitlement to nonservice-connected pension is dependent on the outcome of the development ordered herein, it is inextricably intertwined with the issues of entitlement to service connection for a right leg scar and left foot disability. Therefore, the issue of entitlement to a permanent and total disability rating for pension purposes is also remanded to determine whether the criteria under 38 U.S.C.A. §§ 1155, 1521(a) (West 2002), and 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.15, 4.16, 4.17 (2006) will have been met after AOJ adjudication is completed for the issues of service connection for a right leg scar and left foot disability. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded an examination for the purpose of evaluating his claim of entitlement to service connection for a right leg scar. The examiner should review the claims file, examine the veteran in accordance with the requirements for direct service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. §§ 3.303, 3.304, and undertake any and all clinical tests or studies deemed appropriate. The examiner should determine whether the veteran suffers from a lesion, scar, or recurrent infection of the right leg, and if so, should offer an opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that such any such pathology of the right leg is related to the venous stasis of the right leg observed in service or any other incident of service. The examiner should be asked to report all findings in detail, and to provide a rationale for all opinions rendered. 2. The veteran should be afforded an examination for the purpose of evaluating his claim of entitlement to service connection for a left foot disability. The examiner should review the claims file, examine the veteran in accordance with the requirements for direct service connection and service connection based on aggravation of a preexisting condition. Any indicated clinical tests or studies deemed appropriate should be performed. The examiner determine whether the veteran suffers from a left foot or toe disability, and if so, should offer an opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that such left foot disability is of service origin or related to a disability that preexisted service. If related to a preexisting disability, the examiner should offer an opinion whether there was an increase in severity of that condition beyond its natural progress coincident with service, including whether there it is at least as likely as not (at least a 50 percent likelihood) that the pes cavus of the feet noted upon enlistment to service was aggravated by service and resulted in any current left foot disability. The examiner should be asked to report all findings in detail, and to provide a rationale for all opinions rendered. 3. When the above development is completed, the veteran should be provided with a VA general medical examination for pension purposes to determine the nature and extent of all disabilities present. The AOJ should then consider whether the veteran meets the criteria for entitlement to a permanent and total disability rating for pension purposes in accordance with 38 U.S.C.A. §§ 1155, 1521(a); 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.15, 4.16, 4.17 (2006). 4. After all required actions have been completed, the AOJ should take adjudicatory action to evaluate the veteran's claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ STEVEN L. KELLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs