Citation Nr: 1145745 Decision Date: 12/14/11 Archive Date: 12/21/11 DOCKET NO. 08-29 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, to include fibromyalgia, depression, a mouth condition, an eye disorder, a kidney disorder, and all other potential side effects. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's wife ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating action by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). In June 2010, the Board issued a decision denying the Veteran's claim to reopen the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, to include fibromyalgia, depression, a mouth condition, an eye disorder, a kidney disorder, and all other potential side effects. However, not long thereafter, the Board learned that the Veteran submitted additional evidence to the RO in May 2010 which was pertinent to his claim. Accordingly, in August 2011, the Board vacated its June 2010 decision in order to consider the additional evidence submitted by the Veteran in May 2010. In November 2011, the Veteran's representative provided a waiver of the Veteran's right to have the RO readjudicate his claim with the additional evidence submitted in May 2010. See 38 C.F.R. § 20.1304(c) (2011). FINDINGS OF FACT 1. In August 2004, the RO denied the Veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, to include major depressive disorder, because the evidence failed to show that VA medical or educational services were the proximate cause of the claimed additional disability. That decision is final based on the evidence then of record. 2. In January 2005, the RO denied the Veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, to include extreme depression, vision problems, hearing loss, loss of sleep, thyroid disorder, and other symptoms, because the evidence failed to show that the symptoms claimed were the result of improper treatment or other instance of fault on the part of VA in providing medical care. That decision is final based on the evidence then of record. 3. In January 2007, the RO denied the Veteran's claim to reopen the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment because the Veteran failed to submit new and material evidence. That decision is final based on the evidence then of record. 4. Evidence associated with the claims file since the January 2007 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment. CONCLUSION OF LAW Evidence submitted to reopen the claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim to reopen the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the Veteran's claim, an April 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006) (holding that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish entitlement to the underlying claim). The letter also essentially requested that the Veteran provide any evidence in his possession that pertained to his claim. 38 C.F.R. § 3.159(b)(1). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. - (2009). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board acknowledges that VA did not provide the Veteran with a medical examination with regard to his claim to reopen the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment. "Nothing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f). Nevertheless, VA has a duty, in order to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although no VA examination was provided to the Veteran regarding the merits of his claim for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, none was required in this case because no new and material evidence has been presented. See 38 C.F.R. § 3.159(c)(4)(iii). There is no indication in the record that any other additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In an August 2004 decision, the RO denied the Veteran's claim for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, to include major depressive disorder, because the evidence failed to show that VA medical or educational services were the proximate cause of the claimed additional disability. The Veteran did not perfect an appeal of the RO's August 2004 rating decision. Thus, the August 2004 rating decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2011). In January 2005, the RO denied the Veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, to include extreme depression, vision problems, hearing loss, loss of sleep, thyroid disorder, and other symptoms, because the evidence failed to show that the symptoms claimed were the result of improper treatment or other instance of fault on the part of VA in providing medical care. The Veteran did not perfect an appeal of the RO's January 2005 rating decision. Thus, the January 2005 rating decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In January 2007, the RO denied the Veteran's claim to reopen the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment because the Veteran failed to submit new and material evidence sufficient to reopen his claim. The Veteran did not perfect an appeal of the RO's January 2007 rating decision. Thus, the January 2007 rating decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In February 2007, the Veteran filed the present claim to reopen the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, to include fibromyalgia, depression, a mouth condition, an eye disorder, a kidney disorder, and all other potential side effects. In a June 2007 rating action, the RO denied reopening the Veteran's claim. In January 2008, the Veteran filed a notice of disagreement with regard to the June 2007 rating action, and perfected the current appeal in September 2008. Although the RO determined that new and material evidence was not presented to reopen the Veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, such a determination is not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the January 2007 RO decision is the last final disallowance with regard to the Veteran's claim for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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. "New" evidence means existing evidence not previously submitted to VA. "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. See 38 C.F.R. § 3.156(a). At the time of the January 2007 RO decision, the evidence of record consisted of the Veteran's service treatment records, his VA treatment records, and medical treatise information submitted by the Veteran. The VA treatment records showed diagnoses of and treatment for major depressive disorder, anxiety, hypothyroidism, hepatitis C, benign paroxysmal positional vertigo, and right and left eye cataracts. They also indicate that the Veteran underwent Rebetron therapy from April 2001 through February 2002. The medical treatise information pertained to general information regarding the Interferon beta-1a Subcutaneous Injection and Rebetron, including the known side effects. Since the RO's January 2007 decision, the RO has received additional VA treatment records. In addition, the Veteran and his wife provided testimony before the Board at an April 2010 hearing, and the Veteran submitted a March 2010 private medical letter describing the results of an eye examination. The Veteran and his wife also provided written lay statements, and the Veteran submitted additional medical treatise information pertaining to the management and treatment of hepatitis C and the effects of heptatitis C treatment, including the side effects of the medication. Last, the Veteran submitted a printout of a state criminal court docket which the Veteran thought could show that the VA physician who treated him for his hepatitis C might have a criminal history. The additional VA treatment records show continued diagnoses of and treatment for major depressive disorder, hepatitis C, hypothyroidism, and cataracts. An August 1995 treatment record reflects that a hepatitis C test was positive. A November 2000 treatment record also shows a positive hepatitis C test. An April 2001 treatment record reveals that the Veteran's VA treating physician explained the side effects of the treatment to the Veteran. Another April 2001 treatment record recommends that the Veteran undergo another test to detect hepatitis C in six months, and if it is present, to discontinue therapy. A June 2001 treatment record reveals that the Veteran was nearing the end of his third month of Rebetron treatment, and that he felt fatigued and sick. April 2002 treatment records reflect that the Veteran's VA treating physician indicated that there was not a sufficient response to Rebetron treatment to warrant continuing therapy. A March 2002 treatment record indicates that the Veteran's viral load results were the same as October 2001, and that the Veteran was notified that therapy was to be discontinued. They also show a new diagnosis of and treatment for chronic pain. During an April 2010 hearing before the Board, the Veteran and his wife presented testimony arguing that the treatment provided by VA was improper because the Veteran was not properly screened prior to beginning Interferon treatment, VA did not follow the Veteran's treatment close enough, VA told the Veteran that his side effects of Interferon would go away and they did not, VA did not tell the Veteran that he would have certain side effects of Interferon, and because VA kept the Veteran on Interferon longer than he should have been kept on it. The Veteran and his wife also testified that they believed the Interferon treatment caused numerous medical conditions, including depression, cataracts, worsened thyroid disease, fibromyalgia, anxiety, a mouth disorder, and decreased kidney function. The Veteran's wife testified that the Veteran was hard-working, outgoing, fun, and strong before undergoing Interferon treatment, and that prior to the treatment, the Veteran did not have fibromyalgia, depression, a mouth condition, an eye condition, or other side effects. In a statement dated in April 2007, the Veteran stated that he discussed the side effects of treatment for hepatitis C with his VA treating physician in March 2001, and that the side effects identified were mild flu-like symptoms and depression. He also contends that hepatitis C was first diagnosed in 1995, and that he was never informed of this diagnosis until November 2000. He alleges that VA failed to provide him with the proper specialists to treat his hepatitis C, including a hepatologist. He argues that his VA treating physician never followed his progress or looked to see if he was having side effects, and that four months went by where VA left him on unsupervised treatment with no appointments and no laboratory tests. In a statement received in May 2010, the Veteran's wife reported that the Veteran was happy, full of life, very successful, and outgoing prior to undergoing treatment for hepatitis C. She stated that the Veteran's VA treating physician discussed side effects, including flu-like symptoms, a drop in platelet count, and a drop in hemoglobin. She reported that he was not told about the thyroid, insomnia, shortness of breath, nausea and vomiting, dental problems, chest pain, bruising, severe itching and rash, severe body pain, severe fatigue, and suicidal and homicidal ideation. She noted that the Veteran reported all of his side effects to VA. She stated that the Veteran's treatment was not stopped until four months after the directive was given to discontinue treatment. She indicated that the medication left the Veteran unable to work, depressed, unable to see well, with a constant rash, with hearing problems, in constant pain, with dental problems, with chest pain, and with shortness of breath. She also reported that he had anxiety. After a careful review of the evidence of record, the Board concludes that new and material evidence has not been received to reopen the Veteran's claim for entitlement to compensation benefits under 38 U.S.C.A. § 1151 for residuals of Interferon treatment. In general, when a veteran experiences additional disability as the result of hospital care, medical or surgical treatment, or examination furnished by VA, disability compensation is awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002). Under 38 U.S.C.A. § 1151 it is not sufficient to simply show that a disability was incurred or aggravated by VA medical treatment. Instead, in order for service connection to be warranted under the provisions of 38 U.S.C.A. § 1151, the evidence must show that the claimed disability was caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (B) an event which is not reasonably foreseeable. See 38 C.F.R. §§ 3.358, 3.361 (2011). The Veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of Interferon treatment was denied because the evidence did not show that the disorders claimed were the result of improper treatment or other instance of fault on the part of VA in providing medical care. The evidence received since the January 2007 decision, although new, is not material. Specifically, some of the VA treatment records, the medical treatises, the state criminal court docket report, the lay statements, the private March 2010 treatment record, and the April 2010 testimony are new, because they were not of record at the time of the January 2007 decision. However, the newly submitted evidence does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Specifically, the newly submitted evidence does not show that the claimed side effects of Interferon treatment were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. The April 2001 VA treatment record explaining the side effects of the hepatitis C treatment and directing that the Veteran's treatment be discontinued after six months if the virus was still present is duplicative of evidence in the claims file at the time of the January 2007 decision, and is thus not new evidence. The June 2001, April 2002, and March 2002 VA treatment records submitted by the Veteran are also duplicative of the evidence in the claims file at the time of the January 2001 decision, and therefore, are not new evidence. The remaining VA treatment records, which were not associated with the claims file at the time of the January 2007 decision, reflect diagnoses of and treatment for major depressive disorder, hepatitis C, hypothyroidism, cataracts, and chronic pain. They do not indicate that the claimed side effects of the Interferon treatment provided by VA were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that the claimed side effects were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. Although the evidence reflects that a hepatitis C test was positive in 1995, and that the Veteran did not receive treatment for hepatitis C until after a positive test in November 2000, the Veteran does not contend that VA's failure to treat him prior to 2000 for hepatitis C caused his symptoms. Instead, he argues that the treatment given to him by VA caused his symptoms. Accordingly, the VA treatment record showing a positive hepatitis C test in 1995 is not material to his claim, as it does not suggest that the claimed side effects of Interferon treatment were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. The state criminal court docket report that the Veteran submitted to possibly show that his VA treating physician may have a criminal record has no bearing on his claim, and does not tend to show that the claimed side effects of Interferon treatment were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. Thus, it is not material to the Veteran's claim. Similarly, the March 2010 private medical treatment letter which reflects the results of an eye examination does not suggest that the claimed side effects of Interferon treatment were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment and is therefore not material to the Veteran's claim. The medical treatise evidence submitted by the Veteran is also insufficient to reopen his claim. The Court has consistently held that medical statement and/or treatise evidence that was too generic and inconclusive as to the specific facts in a case was insufficient to establish causal link. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998); Wallin v. West, 11 Vet. App. 509, 514 (1998); Mattern v. West, 12 Vet. App. 222, 228 (1999). Although the medical treatises discuss and describe the side effects caused by Interferon treatment, they do not suggest that the side effects experienced by the Veteran were caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment, and are therefore not material to his claim. The Board acknowledges the lay statements and testimony provided by the Veteran and his wife that they believe that the care provided by VA to the Veteran with regard to his Interferon treatment was improper, and that it caused the Veteran to have fibromyalgia, depression, a mouth disorder, an eye disorder, a kidney disorder, and other side effects. However, while the Veteran's and his wife's statements are competent evidence to provide a history of symptoms, the statements are not sufficient to establish that the Veteran's fibromyalgia, depression, mouth disorder, eye disorder, kidney disorder, and other side effects were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel, or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. As neither the Veteran nor his wife are a physician, they are not competent to make a determination that they claimed disorders were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel, or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, although new, this evidence does not raise a reasonable possibility of substantiating the Veteran's claim for compensation benefits under 38 U.S.C.A. § 1151 for residuals of Interferon treatment. 38 C.F.R. § 3.156. The Board also acknowledges the lay testimony provided by the Veteran and his wife during the April 2010 hearing before the Board that the Veteran's claimed side effects of Interferon treatment, to include fibromyalgia, depression, a mouth condition, an eye condition, and other side effects, have occurred continuously since he was administered the Interferon treatment. However, these statements fail to reveal any new contentions, and are duplicative of the evidence of record at the time of the January 2007 decision, and thus are not new evidence. Vargas-Gonzales v. West, 12 Vet. App. 321 (1999). Specifically, they mirror the Veteran's statements in his September 2004 claim form in which the Veteran reported that he has had side effects of Interferon, including extreme depression, vision problems, hearing loss, loss of sleep, and thyroid problems since he underwent Interferon treatment. Although the statements differ slightly in the specific side effects identified, they are redundant of the main argument that the side effects of Interferon treatment occurred continuously since it was first administered. As noted above, it is not sufficient to simply show additional disability. Instead, in order to reopen the Veteran's finally denied claim, the newly submitted evidence must show that the claimed side effects of Interferon treatment were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. Accordingly, these statements are not new and material evidence and they do not raise a reasonable possibility of substantiating the Veteran's claim. The Veteran's claim for entitlement to compensation benefits under 38 U.S.C.A. § 1151 for residuals of Interferon treatment was denied because the evidence did not show that the claimed side effects of Interferon treatment were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. The new evidence submitted by the Veteran does not contain medical evidence that fibromyalgia, depression, a mouth disorder, eye disorder, kidney disorder, or other claimed side effects were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment. Thus the newly submitted evidence does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim for entitlement to compensation benefits under 38 U.S.C.A. § 1151 for residuals of Interferon treatment is not reopened. Moreover, as new and material evidence to reopen his finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted, the claim to reopen the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of Interferon treatment, to include fibromyalgia, depression, a mouth disorder, an eye disorder, a kidney disorder, and other side effects is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs