Ivey v. Derwinski

[321] MANKIN, Associate Judge, filed the opinion of the Court, in which NEBEKER, Chief Judge, joined. STEINBERG, Associate Judge, filed a separate concurring opinion. MANKIN, Associate Judge: Veteran, Dewey Ivey, appeals a March 22,1990, decision of the Board of Veterans’ Appeals (BVA or Board), which denied entitlement to service connection for residuals of an injury to the left scrotum. We find that the BVA erred in reviewing the case de novo, when the Department of Veterans Affairs (VA) Regional Office (RO) found that the evidence submitted by appellant created no new factual basis for allowing service connection. We find that the Secretary of Veterans Affairs (Secretary) prevented the veteran from presenting new and material evidence to reopen his claim by failing to fulfill the VA’s duty to assist the veteran in developing his claim. Accordingly, the Secretary’s motion for summary affirmance is denied, the BVA decision on appeal is vacated, and the case is remanded to the BVA for further development consistent with this Court’s opinion, the concurring opinion notwithstanding. I. FACTUAL BACKGROUND Dewey Ivey served in the Marine Corps from February 17, 1956, to February 16, 1958. On June 12, 1957, he ran into the comer of a lowered flap on an aircraft. He experienced sharp pain in the left scrotum and noted swelling and discoloration. Ivey was treated with ice packs, bed rest, a scrotal support, and discharged after two days. R. at 7. There was no notation of this injury made in the records of his separation from service medical examination, and his “G-U System” [genitourinary system] was noted to be “normal”. R. at Ills. On January 17, 1984, the VA Regional Office (VARO) in Muskogee, Oklahoma received his first request for service-connected disability for the injury to his scrotum and for exposure to nuclear radiation. R. at 15-18. In the statement in support of his claim, he mentioned that he was treated at a duty station at El Toro Marine Base in Santa Ana, California and had been seeing a urologist, Dr. D.W. Buntley, for about eleven months concerning a urological problem, but had not sought medical treatment for nuclear radiation exposure. R. at 19-20. No medical examination was performed at that time, and no private medical records were obtained. The rating decision of March 22, 1984, denied service connection for the scrotal injury and for the urological problem due to radiation exposure in the absence of continuity of symptoma-tology. R. at 21. On October 20, 1988, a VA doctor noted an old injury to the left testicle with acute problems with recurrent pain and dysuria (difficult or painful discharge of urine). Then on November 4, 1988, the appellant filed to reopen his claim for service connection, this time only for the injury to the left scrotum. This request mentioned that he had been treated by a private physician, Dr. Frank P. Michener, for pain in the urinary tract. R. at 26. On March 16, 1989, the VA doctor assessed Ivey’s condition as “epididymitis-old.” Epididymitis is defined as inflammation of the elongated mass of convoluted efferent tubes at the back of the testis. Webster’s Medical Desk Dictionary 216 (1986). On April 7, 1989, the VA determined that the evidence submitted was not new and material and no reconsideration would be given to his claim. On April 27, 1989, he was again diagnosed as having chronic left epididymitis. A new rating decision was issued on May 9, 1989, confirming that there was no new factual basis showing service connection for the left scrotum condition. On August 31, 1989, appellant appealed to the BVA. On March 22, 1990, the Board found that, “[t]he veteran’s inservice [sic] injury was acute and transitory and resolved without identifiable residuals.” Dewey Ivey, BVA 90-13236, at 4 (Mar. 22, 1990). Thus, service connection for residuals of an injury to the left scrotum was denied. Appellant appeals that BVA decision to this Court. The Court has jurisdiction of the case pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). [322] II. ANALYSIS The Court notes at the outset that the BVA erred when it considered appellant’s claim to be reopened without an analysis as to whether the newly submitted evidence was new and material. The VA first denied service connection for residuals of an injury to the left scrotum in 1984. Appellant attempted to reopen this claim on November 4, 1988. On April 7, 1989, the VARO sent a letter to appellant stating that “the evidence [he] submitted to reopen [his] previously denied claim is not new and material. Because the evidence ... submitted does not provide a new basis for reconsideration of [his] claim, we can make no change in our previous decision.” R. at 28. After the VARO received the appellant’s VA outpatient treatment records for the period October 20, 1988, to April 27, 1989, the rating board addressed the “reopened claim,” on May 9, 1989, yet determined that “no new factual basis [was] shown allowing [service connection] for left scrotum condition.” R. at 37. The VARO never stated, however, whether the evidence submitted was new and material. Then, on June 22, 1989, when appellant requested reconsideration of his claim, the VA told him that if he had “additional medical evidence which is new and material to [his] case” to submit it. R. at 41. The BVA decision made a conclusory statement that the veteran reopened his claim in November 1988 and proceeded to evaluate the merits of appellant’s claim, without first determining whether there was new and material evidence sufficient to reopen the claim. When a veteran attempts to reopen a previously denied claim, “the BVA must perform a two-step analysis.” Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the BVA must determine whether the evidence is ‘new and material’. 38 U.S.C. [§ 5108 (formerly § 3008)]. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old. Id. The claimant must present “new and material” evidence to reopen his claim under 38 U.S.C. § 5108 (formerly § 3008). In this case, however, the veteran was prevented from presenting new and material evidence to reopen his claim by the Secretary’s failure to fulfill its statutory duty to assist the veteran in developing his prospective reopened claim for a service-connected scrotal injury. While the evidence submitted by veteran was inadequate to reopen his claim, it was sufficient to trigger the duty to assist. The statutory requirement giving rise to the Secretary’s duty to assist is established by 38 U.S.C. § 5107(a): Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The secretary shall assist such a claimant in developing the facts pertinent to the claim. Once a claimant has submitted a well-grounded claim, the Secretary is required to “assist such a claimant in developing the facts pertinent to the claim.” 38 U.S.C. § 5107(a) (formerly § 3007(a)); 38 C.F.R. § 3.103(a) (1991); Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991); Moore v. Derwinski, 1 Vet.App. 401, 405 (1991); Murphy v. Derwinski, 1 Vet.App. 78, 80-81 (1990). The veteran did present “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)].” Murphy, 1 Vet.App. at 81. Once the veteran has presented such a claim, the burden is shifted to the Secretary to assist the veteran in developing “all relevant facts, not just those for or against the claim.” Murphy, 1 Vet.App. at 82. While Ivey did not specifically request his private medical records and sign the VA release form as the veteran did in White v. Derwinski, 1 Vet.App. 519 (1991), he put the VA on notice of their existence. In [323] appellant’s request to reopen his claim in 1988, he mentioned treatment for pain in the urinary tract by Dr. Frank R. Michener and provided the doctor’s address. R. at 26. On January 19, 1989, the examining VA doctor suggested a review of the old records from the private urologist. R. at 34. When appellant returned for another VA medical examination on March 16,1989, it does not appear that the private medical records were ever reviewed. When appellant filed his first claim in 1984, there is reference to hospitalization on August 6, 1983. R. at 16. The statement in support of his claim at that time referred to treatment by a urologist, Dr. D.W. Buntley, for 11 months. R. at 19. While the rating board denied appellant’s claim in 1984 without any of these medical records or even a medical exam, that rating decision is not subject to our review. The evidence included in the record on appeal, presumably before the BVA in 1990, contains notice of private medical records in existence at least since 1984. The rating board denied appellant’s claim for service connection without even obtaining or reviewing the appellant’s private medical records, and the BVA affirmed the denial. The veteran also referred to a VA doctor, Dr. Peterman, who allegedly told appellant that he should be service connected for the scrotal injury, but nothing was done to ascertain the validity of this assertion. R. at 54-55. The evidence of record and before the VA raised enough notice of pertinent private medical records to trigger the duty to assist the veteran in developing his claim for compensation for a service-connected scrotal injury. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992). The VA should have sought to obtain the referenced private medical records and also to obtain an opinion from Dr. Peterman as to the possibility of service connection of the veteran’s current testicular disorder. After fulfilling its duty to assist the veteran, the BVA must make an initial determination as to whether or not the private medical records are new and material evidence so as to justify reopening appellant’s claim under the two-step analysis of Manio and 38 U.S.C. § 5108. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old. Manio, 1 Vet.App. at 145. Epididymitis is not a chronic disease subject to presumptive service connection under 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. § 3.309 (1991). In establishing service connection, a showing of continuity of symptomatology after discharge is required to support the claim when the fact of chronicity in service is not adequately supported. 38 C.F.R. § 3.303(b) (1991). In evaluating whether these medical records are new and material evidence sufficient to justify reopening appellant’s claim “there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). III. CONCLUSION Even though the BVA did not specifically decide that the evidence submitted by appellant was new and material, it proceeded to rule that the evidence submitted did not show any reasonable relationship between the first clinical documentation of left epidi-dymitis, nearly 30 years after service, and the service injury to the left scrotum. Because the veteran presented a well-grounded claim, and the BVA proceeded to evaluate appellant’s claim without first acquiring the veteran’s private medical records, the veteran was prejudiced by the BVA’s violation of its duty to assist the veteran. Therefore, the Secretary’s motion for summary affirmance is DENIED, and the decision of the Board is VACATED and REMANDED for action consistent with this opinion, the concurring opinion notwithstanding. It is so ordered.