Citation Nr: 0712158 Decision Date: 04/26/07 Archive Date: 05/08/07 DOCKET NO. 04-05 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for residuals of a head injury, manifest by blurred vision, as a result of an automobile accident in service. 2. Whether new and material evidence has been presented to reopen a claim for service connection for residuals of a head injury, manifest by headaches, as a result of an automobile accident in service. 3. Whether new and material evidence has been presented to reopen a claim for service connection for residuals of a head injury, manifest by memory difficulties, as a result of an automobile accident in service. 4. Entitlement to service connection for residuals of a head injury, manifest by blurred vision, as a result of an automobile accident in service. 5. Entitlement to service connection for residuals of a head injury, manifest by headaches, as a result of an automobile accident in service. 6. Entitlement to service connection for residuals of a head injury, manifest by memory difficulties, as a result of an automobile accident in service. 7. Entitlement to service connection for a cervical spine disorder, as a result of an automobile accident in service. 8. Entitlement to service connection for a low back disorder, as a result of an automobile accident in service. 9. Entitlement to service connection for a right hip disorder, as a result of an automobile accident in service. 10. Entitlement to service connection for a left hip disorder, as a result of an automobile accident in service. 11. Entitlement to service connection for a right shoulder disorder, as a result of an automobile accident in service. 12. Entitlement to service connection for a left shoulder disorder, as a result of an automobile accident in service. 13. Entitlement to service connection for a right knee disorder, as a result of an automobile accident in service. 14. Entitlement to service connection for a left knee disorder, as a result of an automobile accident in service. 15. Entitlement to service connection for prostate cancer, due to exposure to an herbicide agent. 16. Entitlement to service connection for a chronic acquired psychiatric disorder, claimed as depression and anxiety, due to prostate cancer. 17. Entitlement to service connection for a hernia with a scar, claimed as depression and anxiety, due to prostate cancer. 18. Entitlement to service connection for erectile dysfunction, claimed as depression and anxiety, due to prostate cancer. 19. Entitlement to service connection for anal sphincter dysfunction, claimed as depression and anxiety, due to prostate cancer. 20. Entitlement to service connection for stress incontinence, claimed as depression and anxiety, due to prostate cancer. 21. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran served on active duty from October 1966 to October 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), during the pendency of this appeal, which reversed a decision of the Board that had denied service connection for disabilities claimed as a result of exposure to herbicides (and more specifically, the dioxin in Agent Orange). VA disagrees with the Court's decision in Haas and has appealed the case to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of VA imposed a temporary stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will be resumed. There has since been an appeal contesting whether VA, and the Board in particular, has the authority to temporarily suspend paying out benefits to those veterans who would benefit from the holding in Haas on the premise that decision eventually may be overturned on appeal. See Ribaudo v. Nicholson, No. 06-2762 (U.S. Vet. App. Apr. 13, 2007) (en banc). The Court's Ribaudo order stays the adjudication of cases before VA affected by Haas, but provides a case-by-case exception to prospectively continue advancing cases on the docket - and deciding them under the Haas' standards, if there are compelling reasons to do so. Here, the veteran's claim for service connection for prostate cancer is based on presumed exposure to herbicides, in part, as a result of his service on a vessel off the shore of Vietnam and his receipt of the Vietnam Service Medal. Accordingly, that claim is subject to the Haas stay; appellate consideration of that issue is deferred until the Secretary's stay of adjudication of such claims is lifted. Further, the issues concerning service connection for disabilities secondary to prostate cancer (a chronic acquired psychiatric disorder, a hernia with scar, erectile dysfunction, anal sphincter dysfunction, and stress incontinence) are inextricably intertwined with the prostate cancer claim. Therefore, appellate consideration of those issues must also be deferred. See Henderson v. West, 12 Vet. App. 11, 20 (1998); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Bagwell v. Brown, 9 Vet. App. 337, 339-40 (1996). FINDINGS OF FACT 1. A June 1971 rating decision denied service connection for residuals of a concussion due to an automobile accident in service. The veteran was notified of that decision in June 1971 and did not file a notice of disagreement (NOD) within one year, in response, to initiate an appeal. 2. Evidence received since June 1971 concerning headaches, blurred vision, and memory difficulties - claimed as residuals of the concussion due to the automobile accident in service, was not previously of record and raises a reasonable possibility of substantiating this claim. 3. The evidence confirms the veteran was involved in an automobile accident during service, in October 1967, but indicates the accident was caused by his willful misconduct. 4. The veteran has claimed entitlement to service connection for blurred vision, headaches, memory difficulties, a cervical spine disorder, a low back disorder, a bilateral hip disorder, a bilateral shoulder disorder, and a bilateral knee disorder, each as a result of that October 1967 automobile accident in service. 5. Resolving all reasonable doubt in his favor, the medical evidence shows the veteran has bilateral tinnitus as a result of noise exposure during service. CONCLUSIONS OF LAW 1. Evidence received since the June 1971 rating decision, which denied the veteran's claim for service connection for residuals of a head injury, now claimed as manifest by headaches, blurred vision, and memory difficulties, as a result of an automobile accident in service, is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a), 20.302, 20.1103 (2006). 2. Because the veteran's willful misconduct caused that October 1967 automobile accident in service, his residual claims for service connection for blurred vision, headaches, memory difficulties, a cervical spine disorder, a low back disorder, a bilateral hip disorder, a bilateral shoulder disorder, and a bilateral knee disorder are expressly precluded by law. 38 U.S.C.A. §§ 105(a), 1110, 5107 (West 2002); 38 C.F.R. § 3.1 (2006). 3. His bilateral tinnitus, however, was incurred in service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duties to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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) request that the claimant provide any evidence in his possession that pertains to the claim. In this case, the RO has had an opportunity to consider the claims on appeal in light of the above-noted change in the law, and the requirements of the new law and regulations have been satisfied. See Quartuccio, supra (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159). By virtue of a February 2002 RO letter to the veteran notifying him of the VCAA, he has been advised of the laws and regulations governing the claims on appeal and the evidence that he must supply and the evidence that VA would attempt to obtain. Thus, he may be considered to have been advised to submit any pertinent evidence in his possession. His VA and private treatment records through December 2002 have been obtained and he was provided three VA compensation examinations. He has not identified any additional evidence that needs to be obtained. See Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). So the Board finds that the duty to assist has been met. Also, the Board has considered the Court's holding in Pelegrini II that 38 U.S.C.A. § 5103(a), to the extent possible, requires VA to provide notice to the claimant and his representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim before any initial unfavorable agency of original jurisdiction decision. See also Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. Dec. 21, 2006) (Mayfield III) (also discussing the timing of the VCAA notice as it relates to prejudicial error). Here, the RO initially considered the claim in February 2003 - so not until after sending the veteran a VCAA letter in February 2002. Consequently, there was no error in the timing of the VCAA notice. The Board is equally mindful that, during the pendency of this appeal, on March 3, 2006, the Court issued another decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); aff'd sub nom. Hartman v. Nicholson, No. 2006-7303 (Fed. Cir. Apr. 5, 2007), 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 are: 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. 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 granted. Also, on March 31, 2006, the Court issued Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court held, with regard to a petition to reopen a finally decided claim, the VCAA requires VA to provide the veteran with notice of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial (i.e., material evidence). The record does not indicate the veteran was provided notice that complies with the requirements set forth in Kent. Nevertheless, since the Board is reopening his claims - even without him having received this notice, there is no prejudice. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, although the veteran also was not provided notice of what type of information and evidence would be needed to substantiate a downstream disability rating or an effective date if his service connection claims were granted, the Board's denial of service connection for each of the underlying claims stemming from the automobile accident during service renders moot those additional downstream elements of the claims pursuant to Dingess. Accordingly, the veteran also is not prejudiced by the lack of that notice. Bernard, 4 Vet. App. at 394. Finally, although the record does not indicate the veteran was provided sufficient Dingess notice in relation to his claim for service connection for tinnitus, the RO will have an opportunity to cure that defect prior to implementing the Board's grant herein of service connection for this condition. Analysis I. New and Material Evidence Absent the filing of a notice of disagreement (NOD) within one year of the date of mailing of the notification of the denial of an appellant's claim and absent the filing of a substantive appeal (VA Form 9 or equivalent statement) within the remainder of that year or within 60 days of the mailing of the statement of the case (SOC), whichever is later, a rating determination is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. In order to reopen a previously and finally disallowed claim, the Court has indicated that a two-step analysis is required. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140 (1991); see also Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The first step is to determine whether new and material evidence has been presented or secured since the time that the claim was previously and finally disallowed on any basis. It should be pointed out that, in determining whether evidence is material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Further, evidentiary assertions by the appellant must be accepted as true for these purposes, except where the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19 (1993). Lay assertions of medical causation or diagnosis do not constitute credible evidence, as lay persons are not competent to offer medical opinions. Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). If new and material evidence has been received, then the Secretary must immediately proceed to the second step, i.e., evaluating the merits of the claim, but only after ensuring that the duty to assist the claimant under 38 U.S.C.A. § 5107(a) has been fulfilled. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). A rating decision in June 1971 denied service connection for residuals of a head injury in service on the premise there was no evidence of any residuals of that trauma during a VA examination after service in connection with the claim. The veteran was notified of that decision in June 1971 and did not file a notice of disagreement within one year, in response, to initiate an appeal. But VA and private clinic records dated and received since 1971 - actually, since 1997 - as well as the report of a VA psychiatric compensation examination in February 2003, reflect the veteran's complaints or clinical findings of headaches, vision problems, and only "fair" memory. Since each of those complaints or findings relates to a fact necessary to substantiate the claims that were previously unestablished, the Board finds this additional evidence is new and material, so the veteran's claims concerning his headaches, blurred vision, and memory problems are reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In the February 2003 rating decision at issue, the RO implicitly made this finding by proceeding to consideration of the veteran's claims based on all the evidence on file. The Board, however, still had to make this threshold preliminary determination before proceeding to the second step, i.e., evaluating the merits of each claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet. App. 1 (1995); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and Jackson v. Principi, 265 F.3d 1366, 1369 (2001). II. Service Connection Headaches, Blurred Vision, Memory Difficulties, a Cervical Spine Disorder, a Low Back Disorder, A Bilateral Hip Disorder, A Bilateral Shoulder Disorder, and a Bilateral Knee Disorder The veteran claims that his headaches, blurred vision, and memory difficulties all resulted from head trauma that he sustained in the automobile accident in service. In addition, he has claimed service connection for a cervical spine disorder, a low back disorder, a bilateral hip disorder, a bilateral shoulder disorder, and a bilateral knee disorder as other residuals of that same automobile accident. The veteran's service medical records show he was hospitalized for approximately one week in October 1967 following an automobile accident. The summary of the hospitalization lists diagnoses of cerebral concussion and contusion of the left ribs. Chest and skull x-rays were reportedly negative. The veteran's military personnel file contains the report of a February 1968 investigation into the October 1967 automobile accident and his resulting injuries. The report notes he was driving a car on a residential street where the posted speed limit was 25 miles per hour. The report found that his car was traveling at approximately 60 miles per hour - so well in excess of that posted speed limit, that he failed to observe a stop sign, and that his car resultantly collided with another passenger vehicle. This collective body of evidence, according to the report, led to "no other reasonable conclusion than that [the veteran's] operation of his vehicle under the circumstances constituted such gross negligence as to demonstrate a reckless disregard for the consequences and that his injuries were the reasonably foreseeable consequence of such gross negligence." The report further states that "[i]njuries resulting from such gross negligence as to demonstrate a reckless disregard for the consequences are due to misconduct." The report concluded that the veteran's injuries "were not incurred in the line of duty and [instead] were due to his own misconduct." The law provides that For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110 (italics added). The implementing VA regulation is 38 C.F.R. § 3.303. The law and regulations also state that "in line of duty" means an injury or disease incurred or aggravated during a period of active military, naval, or air service 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. 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.1(m). In short, the law expressly precludes granting service connection for disability resulting from the veteran's own willful misconduct. The regulations define "willful misconduct" as an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). Based on the results of the military's investigation - factual findings with which the record does not reflect any disagreement, including by the veteran - the Board agrees with the reviewing authority's conclusion that his conduct that led to the October 1967 automobile accident constituted gross negligence so as to demonstrate reckless disregard for the consequences of his actions. The accident was clearly a foreseeable consequence of his blatant and knowing disregard for the law (far exceeding the legal speed limit and failing to observe a stop sign) and for his own safety and welfare, as well as that of other persons in the vicinity. Consequently, the Board finds that the October 1967 automobile accident was due to his willful misconduct and, thus, did not occur in the line of duty. 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.1(m), (n). Having determined that the October 1967 accident was the result of the veteran's willful misconduct and not in the line of duty, the law precludes granting service connection for any injuries resulting from that accident. 38 U.S.C.A. § 1110. For these reasons and bases, the claims for service connection for headaches, blurred vision, memory difficulties, a cervical spine disorder, a low back disorder, a bilateral hip disorder, a bilateral shoulder disorder, and a bilateral knee disorder must be denied because the preponderance of the evidence is unfavorable, in turn meaning there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Tinnitus The veteran's service medical records do not reflect any complaints of acoustic trauma, i.e., either in the way of resulting hearing loss or tinnitus. The report of his military separation examination in September 1970 also does not note complaints or a diagnosis of tinnitus. His service personnel records show that he participated in small arms target practice in March 1967 and later served aboard a Coast Guard cutter in Vietnam, where he reportedly was exposed to gun noise over a period of years. During a VA compensation examination in November 2003, the veteran reported having occasional difficulty understanding speech and intermittent tinnitus in both ears, occurring about twice a week and lasting only a few minutes. Although the audiologist did not list a diagnosis of tinnitus, he clearly accepted the veteran's reported complaints and specifically noted that he had exposure to ship's gun noise while in the Coast Guard. And while the examiner also did not specifically relate the veteran's tinnitus to his exposure to the ship's gun noise, he did imply as much. Therefore, reading the VA audiologist's report in the light most favorable to the veteran and affording him the benefit of the doubt, the Board concludes that it is just as likely as not his bilateral tinnitus relates back to his service in the military, and in particular to his noise exposure in service. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303. ORDER New and material evidence having been presented, the claims for service connection for blurred vision, headaches, and memory problems are reopened. But service connection is denied for blurred vision, headaches, memory problems, a cervical spine disorder, a low back disorder, a bilateral hip disorder, a bilateral shoulder disorder, and a bilateral knee disorder, because of the veteran's willful misconduct in causing the automobile accident that resulted in these claimed disorders. Service connection is granted for bilateral tinnitus, however. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs