Veterans Medical Advisor

                                                                            drbash@doctor.com

                   

                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0818749

Decision Date: 06/06/08 | Archive Date: 06/18/08

DOCKET NO. 06-20 294

On appeal from the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia

THE ISSUES

1. Whether new and material evidence sufficient to reopen a claim for service connection for residuals of a paratracheal mass.

2. Entitlement to service connection for residuals of a paratracheal mass.

REPRESENTATION

Veteran represented by: The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran & Dr. C.B.

ATTORNEY FOR THE BOARD

R. Morales, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1957 to July 1961 and from September 1961 to January 1968.

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which found there was not new and material evidence to reopen the claim for service connection. The veteran testified at a hearing in April 2008 before the undersigned Acting Veterans Law Judge.

The veteran provided additional documentary evidence following an August 2007 supplemental statement of the case. At the April 2008 hearing, the veteran waived of agency of original jurisdiction consideration. Therefore, appellate review may proceed. See 38 C.F.R. § 20.1304 (2007).

At the April 2008 hearing, the veteran clarified that he is seeking service connection for the residuals of a paratracheal mass. The Board finds that the issue as stated on the title page better reflects the veteran's claim.

FINDINGS OF FACT

1. In an April 1973 decision, the Board denied service connection for a paratracheal mass

2. Evidence added to the record since the April 1973 Board decision denying service connection relates to an unestablished fact necessary to substantiate the veteran's claim.

3. The veteran's paratracheal mass began in service and has been continually present ever since.

CONCLUSIONS OF LAW

1. New and material evidence pertinent to the claim of entitlement to service connection for residuals of a paratracheal mass has been presented and the claim can be reopened. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007).

2. Resolving the benefit of the doubt in the veteran's favor, a paratracheal mass was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran is seeking service connection for residuals of a paratracheal mass.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Here, the Board is granting the veteran's request to reopen his claim and his request for service connection. Thus, no further discussion of the VCAA is required.

New and Material Evidence to Reopen the Claims

A claim that has been denied, and not appealed, will not be reopened. See 38 U.S.C.A. §§ 7104(b), 7105(c), 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a). The exception to this rule provides that if new and material evidence is presented or secured with respect to the disallowed claim, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156.

"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. See 38 C.F.R. § 3.156. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992).

The claims file contains a November 2007 specialist's opinion which opines that the veteran's paratracheal mass began in service. This evidence was not previously submitted, and is therefore "new." As the evidence shows the paratracheal mass began in service and has been continuous ever since, a fact not previously established, it is considered "material." New and material evidence has therefore been submitted, and the claim for service connection for residuals of a paratracheal mass is reopened. Here, the Board finds that development is complete and the Board can therefore make a decision on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Service Connection

The veteran seeks service connection for residuals of a paratracheal mass. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance and the appeal will be allowed.

Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone 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 certain chronic diseases when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

The veteran has a current diagnosis of a paratracheal mass, as reflected in the November 2007 opinion of Dr. Craig Bash, who based his diagnosis, in part, on a 2006 computed tomography (CT) scan of the chest which is not associated with the claims file. The remaining question, therefore, is whether there is evidence of an inservice occurrence of an injury or disease and medical evidence of a nexus or relationship between the current disability and the inservice disease or injury.

Radiologic examination at the time of the veteran's entry into service in July 1957 was negative for any abnormalities. The veteran was seen in February 1960 for chest pain, and calcified hilar and paratracheal nodes on the right side were noted. Shortly after discharge, in February 1968, the veteran was advised by the United States Navy that radiologic reports from the time of his separation show a condition which should be further evaluated. The veteran was advised to obtain further radiologic examination of the chest and further studies. A March 1972 radiologic examination of the chest showed a nodular formation in the right upper mediastinal margin, which could have been due to lymph nodes or granulation. In a VA discharge summary, dated July 1972, a VA doctor states that he compared the March 1972 radiologic film with the one from separation, and that there was no difference in the size of the mass. The VA doctor was unable to identify specific granulomatous disease and tuberculosis tests were negative. The veteran was diagnosed with a paratracheal mass, etiology undetermined but probably granulomatous in type.

Subsequent medical records clearly show a paratracheal mass on the right side from the time of service up until the present. Radiologic examination many years later, in July 1990, still showed a right paratracheal mass. According to Dr. Bash, a 2006 CT scan also showed a right paratracheal mass. Dr. Bash also noted at the veteran's April 2008 hearing that the veteran experienced a lot of pain, tenderness, and weakness in his upper right shoulder, probably due to the large mass on the right side.

The November 2007 opinion of Dr. Bash is of great import in this matter. Dr. Bash states that it is impossible that the mass pre-existed service, as radiologic examination of the chest at that time was negative. Dr. Bash opines that the veteran may have had tuberculosis in service, despite a sample not showing tuberculosis. Based on the available imaging, Dr. Bash found that the veteran's paratracheal mass began in service. Dr. Bash testified at the April 2008 hearing that he had reviewed all of the available medical records, including chest films and CT scans, service medical records, lay statements, recent rating decisions, other medical opinions, and relevant medical literature. He also performed a physical examination on the veteran.

The Board finds the opinion of Dr. Bash is credible evidence that the veteran's paratracheal mass began in service and has been continually present ever since. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of a medical opinion is based on the medical expert's personal examination of the patient, knowledge and skill in analyzing the data, and medical conclusion). Also favorable to the veteran's claim is the July 1972 discharge summary comparing the March 1972 radiologic film with the one from separation and noting there was no difference in the size of the masses. Taken together, the Board finds that this is sufficient evidence upon which to grant the veteran's claim.

There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, particularly with regards to the exact medical cause of the veteran's paratracheal mass; however, such development would not materially assist the Board in this determination. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).

The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. As a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and service connection for residuals of a paratracheal mass will be granted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Accordingly, service connection for residuals of a paratracheal mass is warranted.

ORDER

New and material evidence having been submitted, the claim for service connection for residuals of a paratracheal mass is reopened.

Service connection for residuals of a paratracheal mass is granted.




STEVEN D. REISS

Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
Fax 301-951-9106