Citation Nr: 0832915 Decision Date: 09/25/08 Archive Date: 09/30/08 DOCKET NO. 06-18 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic motion sickness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The veteran had active service from December 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) from a December 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified before the undersigned Veterans Law Judge in March 2008 at a Travel Board hearing at the RO; a transcript is of record. FINDINGS OF FACT 1. Service connection for the residuals of chronic motion sickness was denied by a November 2001 rating decision, which became final when the veteran did not appeal. 2. Additional evidence submitted since the November 2001 rating decision does not bear directly and substantially upon the issue of service connection for chronic motion sickness. In addition, it does not raise a reasonable possibility of substantiating the claim and does not, by itself or in conjunction with evidence previously assembled, relate to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW Evidence received since the previous final decision in November 2001 in which the RO denied service connection for chronic motion sickness is not new and material, and the previous decision may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.156(a), 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. granted (U.S. June 16, 2008) (No. 07-1209). In October 2004 and November 2006 VA sent the veteran letters informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letters informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the December 2004 rating decision, May 2006 SOC, and January 2007 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional 60-day periods to submit more evidence. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in the November 2006 letter which VA sent to the veteran. The Board also notes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. Such notice was provided in the October 2004 letter to the veteran. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Applicable Law, Facts, and Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also 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(d). Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Kightly v. Brown, 6 Vet. App. 200 (1994). New and material evidence is defined as evidence not previously submitted to agency decision makers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented) will be evaluated, in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). Before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. The Board does not have jurisdiction to consider a claim which has been previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). If the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Summarizing the evidence of record at the time of the November 2001 rating decision, the service treatment records (STRs) show that when the veteran enlisted he did not have a history of car, train, sea, or air sickness. The veteran was treated for chronic motion sickness in August 1978. He was determined not eligible for reenlistment due to motion sickness. The veteran reported at a November 2001 VA examination that he experiences dizziness when he goes up in an elevator more than two floors, walks on an uneven surface, or watches waves of sea water. On physical examination of his ears, he had some cerumen in the left external canal and sclerotic change of the tympanic membrane. He was diagnosed with chronic motion sickness (subsequently claimed as an inner ear condition). The RO noted that the record was silent for any inner ear condition, and that the veteran's chronic motion sickness was considered a congenital or developmental defect unrelated to military service and not subject to service connection. Regarding the evidence of record submitted in conjunction with the veteran's request to reopen his claim, at July 2003 treatment with a private neurologist he said that his dizziness had become more severe since his last appointment. Two days before the appointment with the neurologist, the dizziness had gotten so bad that he saw his family physician, who prescribed Meclizine, which the veteran said provided some relief. The veteran described the dizziness as difficulty with his balance, and he said that he had been doing "furniture walking" at home in order not to fall. Turning his head quickly from one side to the other or standing up from a sitting or lying position increased the dizziness. At a September 2004 VA audiological examination it was noted that the veteran had a history of difficulties associated with positional vertigo, but he denied experiencing recent otalgia or vertigo. In September 2004 the veteran wrote that his motion sickness left him with severe problems which had worsened over the years, and that the medication for it caused headaches, sleeplessness, and irritability. His ability to travel was limited, affecting both the work and leisure aspects of his life. In December 2004, the veteran submitted medical literature on ototoxicity (ear poisoning) and vertigo. He wrote that his problems with motion sickness began while on duty due to the medications he was given. In December 2005 the veteran had a hearing before a Decision Review Officer at which he testified that none of the treatments that he had in service for motion sickness worked. The veteran further testified that after his military service he was given Dramamine by a physician, but it did not help. The veteran had a VA examination in April 2006 at which he reported that after his military service he had experienced intermittent episodes of lightheadedness, dizziness, unbalance, and an impending feeling of passing out. The symptoms last for a couple of hours, and will occur when he is in an airplane or an elevator for more than three floors. In a December 2006 addendum to the examination report, the VA examiner opined that veteran's motion sickness is a developmental defect and was not caused by or the result of his military service. At the March 2008 Travel Board hearing, the veteran testified that as a child he was able to go on amusement park rides and go out on rivers without any problems. In addition, he did not have any problems on elevators. He further testified that he had seen two private physicians for chronic motion sickness and they gave him Antivert, which did not help. He said he believes, based on his research, that the large doses of penicillin and antibiotics he was given during service led to his chronic motion sickness. At the conclusion of the hearing, the veteran and his representative requested additional time to have an expert witness review his STRs and provide an opinion as to the cause of his claimed disorder. The undersigned directed that the record be held open for 90 days, but no additional evidence has been submitted. Having reviewed the complete record, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for chronic motion sickness. While the private and VA treatment records, medical literature, and hearing testimony submitted since the November 2001 rating decision do constitute new evidence, in that they were not of record at the time of the previous decision, they are not material evidence, because they do not bear directly and substantially on the issue at hand. In this regard, these reports do not, nor does any of the additional evidence submitted in connection with the claim to reopen, demonstrate that the veteran has current chronic motion sickness that is a disease of in-service origin. The Board notes that a General Counsel Precedent Opinion, VAOPGCPREC 82-90 (July 18, 1990), held that service- connection may be granted for diseases, but not defects, of congenital, developmental, or familial origin. In the present case, the VA examiner wrote in his December 2006 examination addendum that the veteran's chronic motion sickness is a developmental defect and was not caused by or the result of his military service. In a January 2007 addendum the examiner wrote that chronic motion sickness is a developmental defect and not a disease. Therefore, the VA examiner opined that the veteran's chronic motion sickness had its origin before service and that it is a defect, not a disease. This makes it ineligible for service connection under the above General Counsel opinion. In addition, the medical literature that the veteran submitted is not specific to his case, and the 2003 treatment notes do not provide competent information to link his chronic motion sickness to his military service or any incident which occurred therein. We recognize the sincerity of the arguments advanced by the veteran that his chronic motion sickness is a service- connected disease. However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that a layperson's statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, establishing that chronic motion sickness is a service-connected disease requires specialized training and is therefore not susceptible to lay determination. In summary, the Board finds that the evidence received in conjunction with the request to reopen is not new and material, and does not serve to reopen the claim for service connection for chronic motion sickness. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Since the Board has found that the evidence is not new and material, no further adjudication of this claim is warranted. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). ORDER New and material evidence not having been submitted, the claim for service connection for chronic motion sickness is denied. _______________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs