Citation Nr: 0717288 Decision Date: 06/08/07 Archive Date: 06/18/07 DOCKET NO. 04-01 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for Wegener's granulomatosis of the left lung. 2. Entitlement to service connection for Wegener's granulomatosis of the left lung due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from April 1969 to October 1971. He was awarded the Vietnam Service Medal and he served in Vietnam from January 1970 to January 1971. This matter is before the Board of Veterans? Appeals (Board) on appeal from a March 2003 rating decision of the Department ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for Wegener's granulomatosis of the left lung. 2. Entitlement to service connection for Wegener's granulomatosis of the left lung due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from April 1969 to October 1971. He was awarded the Vietnam Service Medal and he served in Vietnam from January 1970 to January 1971. This matter is before the Board of Veterans? Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which determined that new and material evidence had not been submitted to reopen the claim for service connection for Wegener's granulomatosis of the left lung. A January 1981 RO final rating decision had denied the claim on a direct basis. In July 2006, the Board determined that liberalizing Agent Orange regulations enacted since the January 1981 rating decision warranted handling his allegation of Agent Orange exposure etiology as a separate and distinct claim for jurisdictional purposes. See Spencer v. Brown, 4 Vet. App. 283, 288 (1993), aff'd, 17 F.3d. 368 (Fed. Cir. 1994), cert. denied 513 U.S. 810 (1994). The issues, as listed on the title page, were remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. FINDINGS OF FACT 1. An unappealed RO rating decision in January 1981 denied service connection for Wegener's granulomatosis of the left lung on the basis that such disease was first manifested after service and not shown to be causally related to active service. 2. The additional evidence associated with the claims folder since the January 1981 decision is not material as it does not include competent evidence that would tend to show that Wegener's granulomatosis of the left lung first manifested after service and/or is causally related to active service. 3. The preponderance of the evidence demonstrates that the veteran's Wegener's granulomatosis of the left lung is not causally related to his exposure to herbicides in service. CONCLUSIONS OF LAW 1. A January 1981 RO rating decision, that denied service connection for Wegener's granulomatosis of the left lung, is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1980). 2. Evidence received since the RO's January 1981 rating decision is not new and material; the claim of service connection for Wegener's granulomatosis of the left lung is not reopened. 38 U.S.C.A. §§ 1110, 5108 (West 2002); 38 C.F.R. § 3.156 (2006). 3. Service connection for Wegener's granulomatosis of the left lung due to exposure to herbicides is denied. 38 U.S.C.A. § 1116, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006); 68 Fed. Reg. 27,630 (May 20, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA applies to the instant claims. 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); 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 his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1) (2006). A section 5103 notice for a service connection claim should advise a claimant of the criteria for establishing a disability rating and effective date of award. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). An October 2002 RO letter that preceded the initial adjudication advised the veteran of the types of evidence and/or information deemed necessary to substantiate his claims as well as the relative duties upon himself and VA in developing his claims. Additional VCAA notice was provided in February 2004 including the presumptive provisions for Agent Orange claims. However, the veteran was advised of the wrong standard for reopening his claim. The Board remanded the case in July 2006, in part, to correct notice deficiencies with in the case. Corrective VCAA notices were sent notice was sent in July 2006, to include advising the veteran to submit any evidence in his possession pertinent to his claims and the criteria for establishing a disability rating and effective date of award. In providing notice of the prior final decision in his claim, the RO indicated "[y]our claim was previously denied because service induction examination was negative for the condition.. Therefore, the evidence you submit must relate his fact." (grammatical errors original). The veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The veteran did not receive notice fully complying with the requirements of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159 prior to the initial adjudication. In such circumstances, such error is presumed prejudicial to the veteran unless it is demonstrated that (1) any defect in notice was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice provided what was needed, or (3) that a benefit could not possibly have been awarded as a matter of law. Sanders v. Nicholson, 06-7001 (Fed. Cir. May 16, 2007). The veteran has been advised of the types of evidence and information necessary to substantiate his claims, in particular evidence of a nexus between his Wagener's granulomatosis of the left lung and events during service. The RO letter in July 2006 did not provide proper notice of the reason for the prior final denial, see Kent v. Nicholson, 19 Vet. App. 473 (2006), but such notice defect is not prejudicial in this case. The veteran and his representative have argued that Wagener's granulomatosis of the left lung was first manifested in service by the manifestation of skin disease and provided an encyclopedia article defining Wagener's granulomatosis, its accompanying symptoms and how such symptoms first manifest. They have also argued that such disease is related to exposure to Agent Orange. Thus, actual knowledge that new and material evidence must be presented to show that his Wagener's granulomatosis of the left lung had its onset in service and/or is causally related to events in service. As the claims are denied, there is no prejudice to the veteran with respect to the timing aspects of providing him notice of the criteria for establishing a disability and effective date of award. Any notice deficiencies were cured by readjudication of the claims in a December 2006 Supplemental SOC. See Prickett v. Nicholson, 20 Vet. App. 370, 377 (2006). Regarding the duty to assist, the RO has obtained the veteran's service medical records and all available postservice private and VA treatment records. There are no outstanding requests to obtain private medical records for which the veteran has both identified and authorized VA to obtain on his behalf. VA examination and opinion was obtained on the possible relationship between Wagener's granulomatosis and exposure to Agent Orange as well as whether the skin symptoms shown in service were a manifestation of Wagener's granulomatosis. Absent a reopening of the claim, there is no duty to obtain medical examination or opinion is not required on the direct service connection claim. 38 C.F.R. § 3.159(c)(4)(iii) (2006). There is no reasonable possibility that any further assistance to the veteran by VA would be capable of substantiating his claims. II. Applicable law The veteran seeks service connection for Wegener's granulomatosis on a direct and presumptive basis. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Rowell v. Principi, 4 Vet. App. 9, 15 (1993); Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). It is well established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each issue before adjudicating the merits and that, once apparent, a potential jurisdictional defect may be raised by the court, tribunal or any party, sua sponte, at any stage in the proceedings. Barnett, 83 F.3d at 1383. An RO rating decision in January 1981 denied a claim of entitlement to service connection for Wegener's granulomatosis of the left lung on the basis that such disease was first manifested after service and not shown to be causally related to active service. The veteran was provided notice of this decision in August 1981, but he did not initiate an appeal. That claim, therefore, is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1980). As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). However, if the claimant can, thereafter, present new and material evidence of the previously disallowed claim, then the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108 (West 2002). The veteran filed his application to reopen in September 2002. For claims after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a) (2006); see also 66 Fed. Reg. 45620 (August 29, 2001). 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. Id. 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. Evidence is presumed credible for the purposes of reopening unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence relied upon in reopening the claim must be both new and material. Smith v. West, 12 Vet. App. 312 (1999). For purposes of reopening a claim, the claimant only need to submit evidence which is new and material regarding the basis or issue at hand for the previous final denial. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (determining the issue at hand for the purposes of reopening a finally denied claim depends on what evidence was before the adjudicator when the final decision was made and the reasons that were given for the denial of the claim). Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active wartime military service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2006). In order to qualify for entitlement to compensation under 38 U.S.C.A. § 1110, a claimant must prove the existence of (1) a disability and (2) that such disability has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1360-61 (Fed. Cir. 2001). Wegener's granulomatosis is not listed as a chronic disease subject to presumptive service connection if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2006). The veteran served in the Republic of Vietnam during the Vietnam Era, and is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii) (2006). VA currently recognizes the following diseases as associated with exposure to herbicides: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; Chronic lymphocytic leukemia; Multiple myeloma; Non-Hodgkin's lymphoma; Acute and subacute peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Soft- tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) (The term "soft-tissue sarcoma" includes Adult fibrosarcoma, Dermatofibrosarcoma protuberans, Malignant fibrous histiocytoma, Liposarcoma; Leiomyosarcoma; Epithelioid leiomyosarcoma (malignant leiomyoblastoma); Rhabdomyosarcoma; Ectomesenchymoma; Angiosarcoma (hemangiosarcoma and lymphangiosarcoma); Proliferating (systemic) angioendotheliomatosis; Malignant glomus tumor; Malignant hemangiopericytoma; Synovial sarcoma (malignant synovioma); Malignant giant cell tumor of tendon sheath; Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; Malignant mesenchymoma; Malignant granular cell tumor; Alveolar soft part sarcoma; Epithelioid sarcoma; Clear cell sarcoma of tendons and aponeuroses; Extraskeletal Ewing's sarcoma; Congenital and infantile fibrosarcoma; and Malignant ganglioneuroma. See 38 C.F.R. § 3.309(e) (2006). VA has also determined that the following diseases are not associated with exposure to herbicide agent: Hepatobiliary cancers; Nasopharyngeal cancer; Bone and joint cancer; Breast cancer; Cancers of the female reproductive system; Urinary bladder cancer; Renal cancer; Testicular cancer; Leukemia (other than chronic lymphocytic leukemia); Abnormal sperm parameters and infertility; Parkinson's disease and parkinsonism; Amyotrophic lateral sclerosis; Chronic persistent peripheral neuropathy; Lipid and lipoprotein disorders; Gastrointestinal and digestive disease; Immune system disorders; Circulatory disorders; Respiratory disorders (other than certain respiratory cancers); Skin cancer; Cognitive and neuropsychiatric effects; Gastrointestinal tract tumors; Brain tumors; Light chain-associated amyloidosis; Endometriosis; and Adverse effects on thyroid homeostasis. 68 Fed. Reg. 27,630 (May 20, 2003). VA is required by law to establish presumptive service connection for a disease when it determines, based on sound medical and scientific evidence, that a positive association (i.e., the credible evidence for the association is equal to or outweighs the credible evidence against the association) exists between exposure of humans to an herbicide agent and a disease. 38 U.S.C.A. § 1116(b)(1) (West 2002). In making this determination, VA must take into account reports received from the National Academy of Sciences (NAS) under section 3 of the Agent Orange Act of 1991 and all other available sound medical and scientific information and analysis. 38 U.S.C.A. § 1116(b)(2) (West 2002). By law, VA is also required to set forth a determination that a presumption of service connection is not warranted. 38 U.S.C.A. § 1116(c)(1)(B) (West 2002). The claimant bears the burden to present and support a claim of benefits. 38 U.S.C.A. § 5107(a) (West 2002). In deciding claims on the merits, the Board will resolve reasonable doubt of material fact in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The benefit of the doubt rule, however, does not apply to a new and material evidence analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Factual summary Evidence before the RO in January 1981 included the veteran's October 1968 pre-induction examination recording a pre- service history of right knee dislocation, mumps as a child, occasional migraine headaches, a head injury, athlete's foot, myopia, and fracture of a left finger. Private medical statements indicated his treatment for acute gastro- esophageal spasm of unknown cause in 1965 and right knee contusion in 1966. An additional medical statement noted symptoms of periodic buzzing sensations with blackouts and electroencephalogram (EEG) findings consistent with a convulsive disorder that resolved after a course of treatment with Dilantin. His entrance examination indicated normal clinical evaluations of all bodily systems. A chest x-ray examination was negative. During service, he was treated for various skin disorders, including tinea of the hands and feet, miliaria, molluscum contagiosum and condylomata. He was treated for bronchitis in March 1971. His separation examination was significant for a rash on the chest diagnosed as tinea versicolor, but indicated normal clinical evaluations for all other bodily systems. A chest x-ray examination was negative. The first available post-service treatment records show VA clinic treatment for bilateral knee pain in 1972. Private clinical records show treatment for left lower lobe pneumonia in July 1980. A ventilation perfusion (V-Q) scan showed a low probability of pulmonary emboli. VA examination in November 1980 included his history of having chest pains in 1980. He was undergoing Cytoxin treatment for Wegener's granulomatosis. A chest x-ray examination revealed multiple lobular densities at the left mid and lower lung fields compatible with clinically described Wegener's granulomatosis. Physical examination resulted in diagnoses of vitiligo of the anterior and posterior chest walls secondary to intermittent episodes of tinea pedis, corporis and versicolor; mildly active epidermophytosis of the inguinal femoral areas; and history of limited Wegener's granulomatosis involving the left lung under active Cytoxin treatment with multiple side reactions of the groin area. An RO rating decision in January 1981 (inadvertently dated 1980) granted service connection for vitiligo, tinea pedis, corporis and versicolor, and epidermophytosis. The RO denied service connection for Wegener's granulomatosis on the basis that such disease was first manifested after service and not shown to be causally related to active service. Evidence of record since the RO's January 1981 decision includes the veteran's arguments that his Wegener's granulomatosis is due to exposure to Agent Orange in service. His representative argues that the veteran's Wegener's granulomatosis was first manifested by various skin disorders in service, and has provided a definition of Wegener's granulomatosis from the Wikipedia Encyclopedia as follows: Wegener's granulomatosis is a form of vasculitis that affects the lungs, kidneys, skin and other organs. Initial signs are protean, and diagnosis can be severely delayed due to the non-specific nature of symptoms. The rhinitis is generally the first sign in most patients. Wegener's granulomatosis is usually only suspected when a patient has had unexplained symptoms for a longer period of time. The medical evidence includes previously unconsidered records from Christian Hospital showing the veteran's diagnosis and treatment for Wegener's granulomatosis in 1980. Notably, a left lower lobe bronchial biopsy showed necrosis and inflammation consistent with Wegener's disease. Subsequent VA clinical records show monitoring for Wegener's granulomatosis. VA examinations of the skin were performed in January 1985, December 1986, March 1992, May 1994 and June 1997, including opinion that the veteran's skin disorders were likely fungal in nature. Private treatment records from Drs. R.J.E. and K.T. show the veteran's treatment for a recurrence of Wegener's disease in 2001. It was noted he had a prior history of limited Wegener's disease with no kidney or sinus symptoms. In September 2006, the veteran underwent VA examination with benefit of review of his claims folder. Following examination and review of the claims folder, the examiner provided the following diagnosis and opinion: Wegeners Granulomatosis. In my medical opinion there is nothing in the medical records that would support the veterans claim that Wegeners Granulomatosis is associated with his service in Vietnam. It occurred over nine years after discharge from the service and there is nothing in the medical literature that supports the connection between Wegeners Granulomatosis and herbicide exposure. In summation, it is my medical opinion that the veterans Wegeners Granulomatosis is not related to herbicide exposure from his period in Vietnam, nor are there any medical conditions that would remotely consider that there would be a connection. The skin condition that he had is clearly defined as a fungal tinea infection and not related to Wegeners Granulomatosis. IV. Analysis As indicated above, an RO rating decision in January 1981 denied a claim of entitlement to service connection for Wegener's granulomatosis of the left lung on the basis that such disease was first manifested after service and not shown to be causally related to active service. The newly submitted private and VA clinical records and VA examinations do not include any competent (medical) opinion suggesting that the veteran's Wegener's granulomatosis first manifested in service and/or is causally related to event(s) in service. The encyclopedia definition of Wegener's granulomatosis is not competent evidence supportive of the claim as it does not speak to the particular facts of the veteran's case. Sacks v. West, 11 Vet. App. 314 (1998). While such information may constitute competent evidence in an appropriate case, the attempt to associate the veteran's skin disorders demonstrated in service as the actual manifestation of Wegener's granulomatosis requires a competent examiner to show how the treatise applies to the case. Hensley v. West, 212 F 3d. 1255, 1265 (Fed. Cir. 2000). A VA examiner did review the claims folder, and opined that the veteran has a fungal skin disorder unrelated to Wegener's granulomatosis. This evidence, while new, is not material to the question at hand. Additionally, none of the newly submitted arguments by the veteran and his representative are material to the issue at hand as lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). This is so because lay persons are not deemed competent to speak to issues of medical diagnosis and etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the additional evidence received since the January 1981 RO rating decision is not new and material and the appeal seeking to reopen a claim of service connection for Wegener's granulomatosis must be denied. The veteran's claim of entitlement to Wegener's granulomatosis of the left lung due to exposure to herbicides must also be denied. The VA examiner in September 2006 found that the veteran's Wegener's granulomatosis is not related to herbicide exposure noting that there is no medical literature to support such a connection. The best scientific and medical evidence available, the National Academy of Sciences entitled "Veterans and Agent Orange: Update 2002" published on January 23, 2003, has found that no positive association existed between exposure to herbicides and respiratory disorders other than already specified in VA regulations. There is no competent evidence of record suggesting a causal relationship between herbicide exposure and Wegener's granulomatosis. Accordingly, the Board finds that the preponderance of the evidence demonstrates that the veteran's Wegener's granulomatosis of the left lung is not causally related to his exposure to herbicides in service. The assertions by the veteran and his representative are not deemed competent to speak to issues of medical diagnosis and etiology. See Espiritu, 2 Vet. App. at 494. The benefit of the doubt rule is not for application as the preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001); 38 U.S.C.A. § 5107 (West 2002). ORDER The claim of entitlement to service connection for Wegener's granulomatosis of the left lung is not reopened. The claim of entitlement to service connection for Wegener's granulomatosis of the left lung due to herbicide exposure is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs