Citation Nr: 0516224 Decision Date: 06/15/05 Archive Date: 06/27/05 DOCKET NO. 03-36 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to warrant reopening a claim of entitlement to service connection for papillary thyroid cancer, status post parthyroidectomy, claimed as secondary to radiation exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty from July 1968 to June 1972. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which determined that no new and material evidence has been submitted to warrant reopening the claim of entitlement to service connection. In September 2004, a video hearing was held before the undersigned. FINDINGS OF FACT 1. In a decision dated February 24, 1997, the Board denied the veteran entitlement to service connection for thyroid cancer due to radiation exposure. 2. The veteran did not request reconsideration of that decision, and an appeal of the Board's determination was dismissed. 3. Evidence associated with the claims file subsequent to the February 1997 decision either duplicates or is cumulative vis-à-vis evidence already of record, does not tend to show that thyroid cancer occurred in service or that a nexus exists between the claimed disorder and service, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The February 24, 1997 Board decision is final; new and material evidence has not been received to warrant reopening the claim of entitlement to service connection for thyroid cancer. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5108, 7103, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The October 2003 Statement of the Case (SOC) advised the veteran of the laws and regulations pertaining to his claim. The document informed the veteran of the evidence of record and explained the reasons and bases for denial. The veteran was specifically informed that his claim for service connection for thyroid cancer was denied because new and material evidence had not been submitted. The SOC made it clear to the veteran that in order to prevail on his claim, he needed to present evidence that linked his residuals of thyroid cancer to service. The RO had previously sent correspondence dated in May 2002 that told the veteran about the VCAA, what evidence was needed and also informed him what evidence the RO would obtain and what he needed to do. The veteran testified at a personal hearing. The veteran has not indicated that there is any other evidence available, and more than one year has passed since he was notified of what he needed to do for his claim to be granted. Thus, on appellate review, the Board sees no areas in which further development is needed. The RO has essentially met the requirements of the VCAA, and there would be no benefit in developing this case further. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Under these circumstances, adjudication of this appeal poses no prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92. The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial VCAA notice was provided in May 2002, which was prior to the August 2002 initial adverse rating decision. Therefore, VA has complied with the requirements of Pelegrini with respect to the timing of the initial VCAA notice. The Board notes that the Court has concluded that the VCAA does not require a remand where the appellant was fully notified and aware of the type of evidence required to substantiate his claims and that no additional assistance would aid in further developing his claims. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). When, as here, there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, the VCAA does not require further assistance. Wensch v. Principi, 15 Vet App 362 (2001); Dela Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Furthermore, with a claim to reopen, such as the claim in this case, VA's responsibility extends to requesting evidence from any new source identified by the claimant, and if that evidence is not new and material, the claim is not reopened, and VA has no further duties to the veteran with respect to that particular claim. See, e.g., VBA Fast Letter 01-13 (February 5, 2001). VA does not have a duty to provide the veteran a VA examination if the claim is not reopened. The VCAA explicitly stated that, regardless of any assistance provided to the claimant, new and material evidence must still be submitted to reopen a claim. 38 U.S.C. § 5103A(f) (West 2002); 38 C.F.R. § 3.159(c)(4)(C)(iii) (2004). As discussed above, in this case, the RO complied with VA's notification requirements and informed the veteran of the information and evidence needed to substantiate his claim. Since no new and material evidence has been submitted in conjunction with the recent claim, an examination is not required. New and Material Evidence By decision of February 24, 1997, the Board denied entitlement to service connection for thyroid cancer due to radiation exposure. Unless the Chairman of the Board orders reconsideration, all Board decisions are final on the date stamped on the face of the decision. 38 U.S.C.A. §§ 511(a), 7103(a), 7104(a) (West 2002); 38 C.F.R. § 20.1100(a) (2004). The veteran did not request reconsideration. Although the veteran did appeal the February 1997 denial, his appeal was dismissed by an Order dated in October 1997. Under such circumstances, the law provides that the prior Board decision cannot be modified unless evidence submitted in support of the veteran's claim to reopen is "new and material" pursuant to 38 U.S.C.A. § 5108 (West 2002). Generally, when a claim is disallowed, it 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, "[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." The regulation defining new and material evidence (38 C.F.R. § 3.156(a)) has been amended recently. The revised 38 C.F.R. § 3.156(a) applies to claims to reopen received on or after August 29, 2001. Because the appellant's request to reopen his claim was received in April 2002, the amended regulation applies to this claim. Under the amended version of 38 C.F.R. § 3.156(a), "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. 38 C.F.R. § 3.156(a). 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. Id. The VCAA provides that nothing in the section shall be construed as requiring VA to reopen a previously disallowed claim except when new and material has been presented or secured. See 38 U.S.C.A. § 5103A. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Regarding materiality, the Court has held that the newly presented evidence need not be probative of all the elements required to award the claim but that the evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). The United States Court of Appeals for the Federal Circuit has held that evidence which is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Service connection for a disability which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd, 120 F.3d. 1239 (Fed. Cir. 1997). First, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task that includes the difficult burden of tracing causation to a condition or event during service." See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Second, in the absence of competent medical evidence linking a disability to service, there is a lifetime presumption for certain enumerated diseases without any requirement that it manifest to a specific degree, for those who meet the requirements of a radiation exposed veteran who engaged in radiation risk activity under § 1112(c)(3) and 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The diseases referred to in the regulation prior to March 26, 2002 included cancer of the thyroid. Finally, other "radiogenic" diseases, such as any form of cancer, listed under 38 C.F.R. § 3.311(b)(2), as amended by 63 Fed. Reg. 50993-50995 (Sept. 24, 1998), found 5 years or more after service (for most of the listed diseases) in an ionizing radiation exposed veteran may also be service- connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. "Radiogenic diseases" under this regulation include thyroid cancer. 38 C.F.R. § 3.311(b). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence which supports that finding. 38 C.F.R. § 3.311(b)(4). When the claim was previously before the Board, the evidence of record consisted of the veteran's service medical records, including his separation medical examination that reported a normal thyroid on his separation from service. The record also included the veteran's assertions that he was exposed to radiation because his military duties required him to come into contact with aircraft radar units. Those records also reflect that the veteran was first diagnosed with multifollicular and papillary carcinoma of the thyroid gland with local metastases in 1981. However, the claim failed because (1) the record did not demonstrate that the veteran was exposed to ionizing radiation during service and (2) thyroid cancer did not manifest until many years after the veteran had completed his military service, with no relationship shown to service. The evidence submitted since the claim was previously before the Board consists of medical records associated with a Social Security determination, various clinical/treatment records, as well as the veteran's testimony before the undersigned at a hearing on September 16, 2004. The medical evidence demonstrates current treatment but, significantly, does not establish any linkage between thyroid cancer and the veteran's military service. The fact that the veteran had thyroid cancer was certainly known in 1997, and the additional evidence is cumulative. The veteran's testimony reiterates the basis of his claim and continued assertion that he was exposed to radar, which exposure was the source of radiation that caused his thyroid cancer. The veteran did not actually work on the radar units. Rather, he worked in supply and would he would routinely deliver and pick up parts at various shops at George Air Force Base in California. One of the shops was where they repaired nose cone radar units for fighter jets. He testified that he would enter the hangar and wait for an authorized individual to sign for the parts. The personnel working at the site wore protective clothing, whereas, he was not provided any such clothing. He reported that at times the personnel would be working on a unit right in his presence while he awaited a signature. However, he also acknowledged that there were no records documenting his presence in those areas. The veteran's current allegations are also cumulative. He made the same contentions previously, so his current contentions cannot be considered new. As for the first basis of the prior denial (no evidence of exposure to ionizing radiation during service), not only are the veteran's current contentions cumulative, but they are also irrelevant to show such exposure. The Board observes and it bears emphasis that the Court has taken judicial notice that radar equipment emits microwave-type non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67, 69, 72 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984). Therefore, radar exposure (non-ionizing), even if established, is not the type of radiation exposure contemplated by the regulation (ionizing). In other words, even accepting as true the veteran's allegations about his in-service activities, the radiation he would have been exposed to from radar equipment was non-ionizing, and does not fall within VA's presumptions for service connection. It is additionally asserted that recent revisions to 38 C.F.R. § 3.309(d) are more favorable to the veteran and warrant reopening the claim. The Board observes that the referenced regulation was expanded to include certain additional cancers not at issue. Contrary to the veteran's belief, the regulation had already contemplated thyroid cancer when the Board denied this claim in 1997. The amendment expanded the regulation to include exposure to certain underground nuclear tests as well as for exposure at certain gaseous diffusion plants in Kentucky, Ohio and Tennessee. The amended regulation does, as the veteran asserts, reduce the burden of proving exposure to radiation for veterans who participated in radiation-risk activity. However, the veteran does not allege that he participated in any of the activities defined as radiation-risk activities. 38 C.F.R. § 3.309(d)(3)(ii). Since none of these conditions are pertinent to this claim, it cannot be said that the amended regulation bears on this claim such that it warrants reopening and considering the claim on the merits. The veteran's testimony and personal assertions that his thyroid cancer was caused by his military service is not helpful to his claim. The Board notes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because he, as a lay person, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Lay assertions are insufficient to reopen a claim under 38 U.S.C. § 5108. Moray v. Brown, 5 Vet. App. 211, 214 (1993). Moreover, such evidence is cumulative of evidence previously considered when the case was last before the Board in February 1997. The Board does not doubt the veteran's credibility or his account of his service activities. However, there is still no new evidence that the veteran participated in a radiation- risk activity (as defined by VA regulations) or was exposure to ionizing radiation, or that his thyroid cancer was otherwise caused by his military service (the second basis of the prior denial). Evidence received since the February 1997 decision either duplicates or is cumulative vis-à-vis evidence already of record, does not tend to show exposure to ionizing radiation in service or that thyroid cancer occurred in service or that a nexus exists between the claimed disorder and service, and does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received subsequent to 1997 is not new and material and does not serve to reopen the claim for service connection. Until the veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence not having been submitted to reopen the veteran's claim of entitlement to service connection for papillary thyroid cancer, status post parthyroidectomy, claimed as secondary to radiation exposure, the appeal is denied. ____________________________________________ MICHELLE L. KANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs