Citation Nr: 0927041 Decision Date: 07/21/09 Archive Date: 07/30/09 DOCKET NO. 05-31 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a kidney condition. 2. Entitlement to service connection for liver cancer, claimed as secondary to hepatitis C. 3. Entitlement to service connection for a right hip disorder, claimed as secondary to hepatitis C. 4. Entitlement to service connection for a right shoulder disorder, claimed as secondary to hepatitis C. 5. Entitlement to an increased evaluation for hepatitis C, currently rated as 10 percent disabling. 6. Entitlement to an increased evaluation for residuals of a splenectomy, currently rated as 30 percent disabling. 7. Entitlement to an increased evaluation for a residual stable scar, anterior abdominal wall status post splenectomy, currently rated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1972 to February 1973. This case comes before the Board of Veterans' Appeals (Board) from rating decisions rendered by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Acting Veterans Law Judge in March 2009. The Board notes that the Veteran's previous claim for entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service- connected disabilities was denied in a March 2008 rating decision. As he raised a new claim for TDIU at his March 2009 Travel Board hearing, the Board refers that claim to the RO. Similarly, the Veteran's claim for a bladder condition was denied in a September 2008 rating decision. As the Veteran again raised the issue of service connection for a bladder control disorder at his March 2009 Travel Board hearing, this issue is also referred to the RO for appropriate action. The issues of entitlement to service connection for a right shoulder disorder, service connection for a right hip disorder, an increased evaluation for hepatitis C, and an increased evaluation for residuals of a splenectomy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The claim of entitlement to service connection for a kidney condition was previously denied in an October 1975 rating decision. The Veteran was notified of that decision but failed to perfect an appeal. 2. Evidence received since the October 1975 rating decision includes evidence that is not cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for a kidney condition. 3. There is no medical diagnosis of liver cancer. 4. The Veteran's residual stable scar, anterior abdominal wall status post splenectomy, is tender and painful on objective demonstration. CONCLUSIONS OF LAW 1. The October 1975 rating decision that denied the Veteran's claim of entitlement to service connection for a kidney condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2008). 2. New and material evidence has not been received to reopen the Veteran's previously denied claim of entitlement to service connection for a kidney condition. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2008). 3. Liver cancer was not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2008). 4. The criteria for a 10 percent rating for residual stable scar, anterior abdominal wall status post splenectomy, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.118, Diagnostic Codes 7804, 7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duty to Notify and the Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended), 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's increased rating for splenectomy scar claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA with respect to the splenectomy scar claim. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the notice letter provided to the Veteran in December 2006 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided with respect to the Veteran's kidney disorder claim, as he was informed about what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. With respect to the claim for service connection for liver cancer, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in December 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO obtained VA treatment records and the Veteran submitted several written statements. Further, he was provided an opportunity to set forth his contentions during the March 2009 Travel Board hearing before the undersigned Acting Veterans Law Judge. Moreover, specific VA medical opinions pertinent to the issues on appeal were obtained in October 2002, April 2005, and June 2005. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither he nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence The Veteran's claim of entitlement to service connection for a kidney condition was previously denied in an October 1975 rating decision. Although the RO again denied the claim on the merits in a March 2006 rating decision, it declined to reopen the Veteran's previously denied claim in an April 2007 decision. Although the RO has determined that new and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for a kidney condition was not submitted, the Board must also consider the question of whether new and material evidence has been received as it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end. Id. In the October 1975 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a kidney condition because such a condition was not shown by the evidence of record. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2008). Thus, the October 1975 decision became final because the Veteran did not file a timely appeal. The claim of entitlement to service connection for a kidney condition may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). Here, the Veteran filed this application to reopen his claim in September 2005. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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. 38 C.F.R. § 3.156(a) (2008). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before VA at the time of the prior final decision consisted of the service treatment records and the report of a September 1973 VA examination. The Veteran applied to reopen his previously denied claim of entitlement to service connection for a kidney condition in September 2005. The Board finds that the evidence received since the last final decision in October 1975 is not cumulative of other evidence of record and does relate to an unestablished fact; however, it does not raise a reasonable possibility of substantiating the Veteran's claim. Newly received evidence includes VA treatment records dated up to December 2008; the report of an October 2002 VA digestive examination; the report of an April 2005 liver examination; the report of an April 2005 scars examination; the report of a June 2005 liver examination; various written statements; and the transcript of a March 2009 Travel Board hearing. The relevant VA treatment records describe referral to the urology clinic due to incontinence and a negative finding of renal calculus. In addition, he had been treated for kidney stones in March 2008. However, there is no new evidence showing a chronic kidney disability caused by service, or a relationship between the Veteran's kidney stones and his military service. At his March 2009 Travel Board hearing, the Veteran testified that he had suffered from kidney stones since 1975. This evidence is new, as it has not been previously considered, and it is not cumulative of other evidence of record. However, it is not material, as it does not demonstrate evidence of chronic disabilities caused by service, or a relationship between a current disability and military service, which were not shown at the time of the previous final denial in October 1975. In sum, while the new evidence was not previously considered by agency decision makers, and is not cumulative or redundant, it does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, the previously denied claim of entitlement to service connection for a kidney condition is not reopened because the Board finds that new and material evidence has not been submitted. Service Connection for Liver Cancer Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1137; 38 C.F.R. § 3.303. In addition, 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(d). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Court has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran seeks entitlement to service connection for liver cancer, which he contends is secondary to his service- connected hepatitis C. However, the Board finds that service connection for a liver cancer must be denied. A claim for service connection requires evidence of a current disability. Here, a June 2005 VA liver, gall bladder, and pancreas examination reported hepatitis C as the only diagnosis. The Veteran subsequently underwent a liver biopsy in October 2005. Although he was found to have focal peri-portal fibrosis, there was no diagnosis of liver cancer. VA outpatient treatment records dated as recently as December 2008 do not include liver cancer on his active problem list. Furthermore, the Veteran testified at his March 2009 Travel Board hearing that he has not received treatment from an oncologist since his liver biopsy. As such, the preponderance of the evidence is against the Veteran's claim for service connection for liver cancer. Although he testified at his March 2009 Travel Board hearing that his VA oncologist was unable to say whether he had liver cancer, there is no competent medical evidence which shows that a liver cancer diagnosis has ever been rendered. To the contrary, his liver biopsy resulted in a diagnosis of focal peri-portal fibrosis. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the claim of service connection must be denied. Increased Rating for Residual Stable Scar, Anterior Abdominal Wall Status Post Splenectomy The Veteran asserts, in essence, that a compensable rating is warranted for his splenectomy scar because the disability is chronically tender and painful. Diagnostic Code 7804 provides that scars that are tender and painful on examination warrant a maximum 10 percent rating. Under Diagnostic Code 7805, scars are rated based on the limitation of motion of the part affected. The Veteran was afforded a comprehensive VA scars examination in April 2005, at which time he complained of abdominal pain upon bending. The scar was described as a 10 inch x 2 millimeter midline abdominal scar starting one inch below the sternum, going downwards, and curving around left of the umbilicus. The Veteran was apprehensive upon touching the scar. However, there was no adherence to underlying tissue and the skin texture was normal. The scar was stable and superficial, with no elevation, depression, underlying soft tissue damage, inflammation, or areas of induration or inflexibility of skin. As there is no indication or allegation of limitation of motion, a rating under 7805 is not in order. Given the Veteran's report of the scar being painful and tender, however, the Board concludes that a maximum 10 percent rating is warranted under Diagnostic Code 7804. At his March 2009 Travel Board hearing, the Veteran indicated that a 10 percent rating would satisfy his appeal on this issue. ORDER New and material evidence has not been submitted to reopen a previously denied claim of entitlement to service connection for a kidney condition; to that extent, the appeal is granted. Entitlement to service connection for liver cancer is denied. A 10 percent rating for a splenectomy scar is granted, subject to the law and regulations governing the payment of VA monetary benefits. REMAND The Veteran also seeks an increased rating for his service- connected hepatitis C and residuals of a splenectomy, as well as service connection for a right hip disorder and right shoulder disorder, both claimed as secondary to hepatitis C. With respect to his hepatitis C and residuals of a splenectomy claims, the Veteran testified at his March 2009 Travel Board hearing that these conditions have become progressively worse since his last VA examination in June 2005. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his hepatitis C and splenectomy residuals. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. With respect to his service connection claims for a right hip disorder and right shoulder disorder, to the extent that these disorders may be manifestations of his service- connected hepatitis C, the Board finds that they are inextricably intertwined with the issue of an increased rating for hepatitis C and a decision on those issues must be deferred pending the results and opinions on examination. Accordingly, the case is REMANDED for the following action: 1. The RO should secure all of the Veteran's VA treatment records dated after December 2008 from the Central Texas Veterans Health Care System -- Austin Outpatient Clinic in Austin, Texas, and from the Central Texas Veterans Health Care System in Temple, Texas. 2. The RO should request the Veteran to identify any private medical care providers that have treated him and the approximate dates of such treatment, including his dates of treatment at the Smithville Regional Hospital in Smithville, Texas. After obtaining any required authorizations, the RO should make arrangements to obtain the Veteran's complete private treatment records. 3. Schedule the Veteran for an appropriate examination to determine the current severity of his hepatitis C, to include any possible associated physical symptomatology (such as the Veteran's right shoulder and right hip disorders) and any effect the condition has on his employability. The examiner must note all manifestation of the Veteran's hepatitis, to specifically include all physical complaints, to specifically include right hip and right shoulder problems. All findings and conclusions should be set forth in a legible report. 4. The RO should then arrange for the Veteran to be scheduled for an appropriate examination to determine the current severity of his splenectomy residuals, to include physical symptomatology and any effect the condition has on his employability. All findings and conclusions should be set forth in a legible report. 5. Then readjudicate the appeal. If the dispositions remain unfavorable, the RO should furnish the Veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs