Citation Nr: 1030812 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 08-37 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to environmental toxins. 3. Entitlement to service connection for pseudocysts on pancreas, to include as due to exposure to environmental toxins. 4. Entitlement to service connection for Bell's palsy, to include as due to exposure to environmental toxins. 5. Whether new and material evidence has been submitted that is sufficient to reopen a previously denied claim of entitlement to service connection for pancreatitis. 6. Whether new and material evidence has been submitted that is sufficient to reopen a previously denied claim of entitlement to service connection for liver abscess. 7. Whether new and material evidence has been submitted that is sufficient to reopen a previously denied claim of entitlement to service connection for status post cholecystectomy. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to March 1984, and from January 2002 to April 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for PTSD, diabetes mellitus, pseudocysts on pancreas, and Bell's palsy, and declined to reopen previously denied claims of entitlement to service connection for pancreatitis, liver abscess, and status post cholecystectomy. Timely appeals were noted from that decision. Claims for service connection for cholecystectomy, and pancreatitis and liver abscess as secondary to cholecystectomy, were denied in May 2004 on the grounds that the disorders were neither incurred during service nor the result of a service- connected disorder. The Veteran has presented a new theory of entitlement in the claims presently on appeal; specifically, that his pancreatitis, liver abscess, and cholecystectomy are the result of in-service exposure to environmental toxins. However, in Roebuck v. Nicholson, 20 Vet. App. 307 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that separate theories in support of a claim for benefits for a particular disability do not equate to separate claims for benefits for that disability. Although there may be multiple theories or means of establishing entitlement to service connection, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. Id.; see also Robinson v. Mansfield, 21 Vet. App. 545 (2008). Thus, the Veteran's new theory of entitlement cannot be construed as a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Velez v. Shinseki, No. 07-1704, slip op. at 4 (U.S. Vet. App. Oct. 9, 2009), citing Robinson, supra; Roebuck, supra; Bingham v. Principi, 18 Vet. App. 470 (2004). A hearing on these matters was held before the undersigned Veterans Law Judge on April 28, 2010. A copy of the hearing transcript has been associated with the file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The issues of entitlement to service connection for PTSD, Bell's palsy, diabetes mellitus type II, and pseudocysts on the liver are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. A May 2004 rating decision denied service connection for pancreatitis on the basis that the disorder was diagnosed after service, was attributed to a cause unrelated to service, and no other evidence showed that the disorder was incurred in or aggravated by military service. 2. The evidence received since the May 2004 decision does not raise a reasonable possibility of substantiating the claim. 3. A May 2004 rating decision denied service connection for liver abscess on the basis that the disorder was diagnosed after service, was attributed to a cause unrelated to service, and no other evidence showed that the disorder was incurred in or aggravated by military service. 4. The evidence received since the May 2004 decision does not raise a reasonable possibility of substantiating the claim. 5. A May 2004 rating decision denied service connection for status post cholecystectomy on the basis that the disorder was diagnosed after service and that and no credible evidence showed that the disorder was incurred in or aggravated by military service. 6. The evidence received since the May 2004 decision does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2004 rating decision denying service connection for pancreatitis is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 2. Evidence received since the May 2004 rating decision is not new and material, and the Veteran's service connection claim for pancreatitis is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. The May 2004 rating decision denying service connection for liver abscess is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 4. Evidence received since the May 2004 rating decision is not new and material, and the Veteran's service connection claim for liver abscess is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 5. The May 2004 rating decision denying service connection for status post cholecystectomy is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 6. Evidence received since the May 2004 rating decision is not new and material, and the Veteran's service connection claim for pancreatitis is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated May 2007 and March 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran was notified of the way initial disability ratings and effective dates are established. The notice requirements for new and material evidence claims set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006) were met by the May 2007 and March 2008 letters. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran has not been examined in conjunction with his claims; however, in a claim to reopen, VA's responsibility extends to requesting evidence from any new source identified by the claimant, and if that evidence is then not new and material, the claim is not reopened, and VA's duties have been fulfilled. 38 U.S.C.A. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii). Thus, VA does not have a duty to provide the Veteran a VA examination if the claim is not reopened. The duties to notify and assist have been met. New and Material Evidence Service connection for pancreatitis and liver abscess was initially denied by rating decision dated May 2004, on the grounds that the disorders were diagnosed after service, were attributed to a cause unrelated to service, and no other evidence showed that the disorders were incurred in or aggravated by military service. The same decision also denied entitlement to service connection for status post cholecystectomy on the grounds that the disorder was diagnosed after service and that no credible evidence showed that the disorder was incurred in or aggravated by military service. The May 2004 decision was not appealed and is final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). The present applications to reopen the claims of service connection for pancreatitis, liver abscess, and status post cholecystectomy were filed in April and June 2007. Newly received evidence includes a June 2007 lay statement from the Veteran stating that his liver abscess and cholecystectomy were the result of in-service consumption of fatty foods; a timeline of the Veteran's symptoms; an October 2006 statement from Dr. Michael Rumble, stating that the Veteran's pancreatitis was the result of his gallbladder disorder and that his gallbladder disease was the result of diet and genetics; lay allegations that in-service findings of atypical chest pain and left arm and shoulder pain were indicative of gallbladder disease, not a cardiac disorder as originally suspected; private medical records dated 2006 and 2007 documenting treatment for status post cholecystectomy, pancreatitis and liver abscess; lay allegations that the Veteran's disorders were the result of exposure to environmental toxins generated during the burning of waste at the Veteran's Kandahar duty station; and fact sheets concerning the effect of PCBs and dioxins on the body. The applications to reopen were denied by rating decision dated March 2008, on the basis that no new and material evidence had been submitted. Under amended 38 C.F.R. § 3.156(a), new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of evidence of record at the time of the last prior final denial, and must raise a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156(a). The evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant's claim on any basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 20.302(a); Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). No new evidence has been received since the last final denials in May 2004, either by itself or when considered with the previous evidence of record, that relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of establishing the claims. 38 C.F.R. § 3.156. The Veteran's timeline of his symptoms, lay assertions concerning the consumption of fatty food, and lay assertions that his atypical chest pain and left arm pain were in fact early manifestations of gallbladder disease are not new, as they were previously considered in the May 2004 claim denying entitlement to service connection. The remaining evidence is new, as it was not previously considered, but it is not material to the claim. The private medical records dated 2006 and 2007 show treatment of the claimed disorders, but do not comment as to their etiology. Dr. Rumble's October 2006 letter relates pancreatitis to gallbladder disease, a disorder that is not service-connected, and reverses his November 2003 opinion that the Veteran's gallbladder disease had its onset during service, stating instead that it was the result of diet and genetics. Thus, it does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of establishing the claim. The Board has considered the Veteran's assertions that the claimed disorders are the result of exposure to environmental toxins generated by "burn pits," as well as the fact sheets he has submitted purporting to link PCB and dioxin exposure to various disorders. However, even if exposure to burn pits is conceded based on the time, place and circumstances of the Veteran's service, see 38 U.S.C.A. § 1154(a), to the extent that any of these statements are presented to support the Veteran's assertions as to etiology of any disability under consideration, these statements cannot constitute material evidence to reopen the claim. There is only his unsubstantiated lay allegation concerning this purported correlation, which, alone, is insufficient reason for having him examined for a medical nexus opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Hence, the lay assertions that the claimed disorders are the result of exposure to environmental toxins have essentially no probative value. As no new and material evidence has been submitted since the last final denial of the Veteran's claims for service connection for pancreatitis, liver abscess, and status post cholecystectomy, the claims are not reopened. ORDER New and material evidence having not been submitted, the application to reopen the previously denied claim of entitlement to service connection for pancreatitis is denied. New and material evidence having not been submitted, the application to reopen the previously denied claim of entitlement to service connection for liver abscess is denied. New and material evidence having not been submitted, the application to reopen the previously denied claim of entitlement to service connection for status post cholecystectomy is denied. REMAND The Veteran is claiming service connection for PTSD, which he attributes to stressful events occurring during his second period of active duty, from January 2002 to April 2002, including receiving enemy fire at his duty station in Kandahar, Afghanistan. A review of the available service personnel records indicates that the Veteran served on active duty from January 7, 2002, to April 30, 2002, with one month and 24 days of foreign duty in support of Operation Enduring Freedom. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 13, 2010), to be codified at 38 C.F.R. § 3.304 (f)(3). The Veteran's testimony is consistent with fear of hostile military activity and is not inconsistent with type and circumstances of his service in Afghanistan. 38 U.S.C.A. § 1154(a). Thus, the Board finds that his lay testimony is sufficient to establish the occurrence of this particular stressor. 75 Fed. Reg. 39852 (July 13, 2010). On remand, the Veteran should be scheduled for a VA examination to determine whether his PTSD is based on his fear of hostile military activity during service in Afghanistan. Id. The Veteran is also claiming entitlement to service connection for Bell's palsy, diabetes mellitus, and pseudocysts of the pancreas, as due to exposure to environmental toxins generated during the burning of medical, human, and other waste in open-air "burn pits" in Kandahar. In Veterans Benefit Administration (VBA) Training Letter 10-03, the VBA noted that such "burn pits" are located at "every location wherein the military has positioned a forward operating base (FOB)." The Training Letter goes on to discusses the type and concentration of particulate matter generated by these "burn pits" and recommends that "because of the widespread nature of the burn pits, and the inability of military personnel records to identify all duty locations, the Veteran's lay statement of burn pit exposure generally will be sufficient to establish the occurrence of such exposure if the Veteran served in Iraq, Afghanistan, or Djibouti." In consideration of the recommendations made in VBA Training Letter 10-03, the Board finds that the Veteran was exposed to fumes generated by a "burn pit" as a result of the time, place, and circumstances of his Afghanistan service. 38 U.S.C.A. § 1154(a). In light of the Veteran's current diagnoses, appropriate examinations should be scheduled to determine whether Bell's palsy, diabetes mellitus, and/or pseudocysts of the pancreas could be result of exposure to environmental toxins generated by burn pits. The RO must provide each examiner with a copy of the Fact Sheet accompanying VBA Training Letter 10-03, which provides guidance to VA examiners who are asked to render an opinion as to whether a particular disorder is the result of exposure to environmental toxins from burn pits. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to be afforded a VA psychiatric examination to determine whether he meets the diagnostic criteria for PTSD based on his claim of fear of hostile military activity while stationed in Afghanistan. The examination report should reflect review of pertinent material in the claims folder. The examination report should include the complete rationale for all opinions expressed. All necessary special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiner prior to the examination. 2. Arrange for the Veteran to be provided with a VA examination(s) to determine the nature and etiology of his diabetes mellitus, Bell's palsy, and pseudocysts of the pancreas. All necessary tests and studies should be conducted. The claims folder, a copy of this REMAND, and the Fact Sheet referring to exposure to burn pits in Iraq and Afghanistan, which accompanies VBA Training Letter 10-03, must be made available to the examiner(s) for review in conjunction with the examination(s). If diabetes mellitus, Bell's palsy, and/or pseudocysts of the pancreas are found, the examiner(s) should render an opinion as to whether it is as likely as not (fifty percent probability or greater) the result of exposure to any environmental toxins generated by burn pits during the Veteran's active service. The examiner(s) must consider all of the evidence of record, as well as the Fact Sheet accompanying VBA Training Letter 10-03, in rendering an opinion, and a rationale for all opinions expressed should be provided. 3. After the above has been completed, readjudicate the issues on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If the issues on appeal continue to be denied, the Veteran and his representative must be provided a supplemental statement of the case. The Veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2009). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs