Citation Nr: 0214650 Decision Date: 10/18/02 Archive Date: 10/29/02 DOCKET NO. 00-09 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a skin condition, formerly classified as psoriasis. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). 4. Entitlement to service connection for major depression. 5. Entitlement to service connection for residuals of exposure to asbestos. 6. Entitlement to service connection for blepharitis. (The issues of entitlement to service connection for PTSD and major depression will be the topics of a separate decision.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from June 1965 to April 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veteran's affairs (VA). The Board is undertaking additional development regarding the issues of entitlement to service connection for a skin disability, PTSD and major depression pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 20.903.) After giving the notice and reviewing your response to the notice, the Board will prepare a separate decision addressing these issues. FINDINGS OF FACT 1. Entitlement to service connection for bilateral hearing loss and for a skin condition classified as psoriasis was previously denied in a September 1986 rating decision based on a finding that these conditions were not shown on the then recent examination. 2. The veteran was notified of that determination in correspondence dated in October 1986; however, he did not initiate a timely appeal with respect to that determination. 3. The veteran attempted to reopen his claim for service connection in August 1997. 4. The evidence received into the record since the 1986 rating decision includes reports of VA, military and private treatment, most of which are new inasmuch as they were not previously of record, but are cumulative in nature to the extent that they do not show that the veteran currently has bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 (2001). 5. The evidence received since the 1986 rating decision does show current evidence of psoriasis; this evidence is so significant that it must be considered with all the evidence in order to fairly decide the veteran's claim. 6. The veteran is not shown to currently have a disability associated with asbestos exposure. 7. The veteran has not shown by competent evidence to currently have blepharitis. CONCLUSIONS OF LAW 1. The September 1996 rating decision that denied service connection for bilateral hearing loss and a skin condition is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.1103 (2001). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (effective prior to August 29, 2001). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin condition. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (effective prior to August 29, 2001). 4. The veteran is not shown to currently have residuals of exposure to asbestos that were incurred in or aggravated by his active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303 (2001). 5. The veteran is not shown to currently have blepharitis that was incurred in or aggravated by his active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence-Background Entitlement to service connection for bilateral hearing loss and a skin condition, then classified as psoriasis was denied in a September 1986 rating decision. The veteran was advised of that determination by correspondence dated in October 1986. He, however, did not initiate an appeal from that determination. The veteran attempted to reopen his claim for service connection in August 1997. At that time, he submitted additional reports of treatment from military medical facilities, private medical providers as well as from VA. New and Material Evidence Claim Filed Prior to August 29, 2001 Initially, the Board notes there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096 (2000); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA regulations have also been revised as a result of these changes. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) and is effective from November 9, 2000, except that the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii) apply to any claim to reopen a finally decided claim received on or after August 29, 2001). In this regard, the Board observes that the VCAA appears to have left intact the requirement that a claimant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the Act shall be construed to require the Secretary 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) (West Supp. 2002). The Board acknowledges that the implementing regulations modify the definition of new and material evidence and provide for assistance to a claimant on claims to reopen. See 66 Fed. Reg. at 45,630 (to be codified as amended at 38 C.F.R. §§ 3.156(a), 3.159(c)). However, the regulation provisions affecting the adjudication of claims to reopen a finally decided claim are applicable only to claims received on or after August 29, 2001. 66 Fed. Reg. at 45,620. Because the veteran's claims to reopen were received prior to that date, those regulatory provisions do not apply. The Board finds no prejudice to the veteran in this case by proceeding with the adjudication of the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss and a skin disability. The RO has complied with the notice and duty to assist provisions of the VCAA. Specifically, the veteran and his representative were advised by the RO of the information required to substantiate his claim, and thus, the Board may proceed with its appellate review. In this regard, the Board notes that in the statement of the case, the appellant was provided with information regarding the evidence needed to substantiate his claim. Additionally, in a June 2001 supplemental statement of the case, the RO advised the veteran specifically on the provisions of the VCAA. In addition, the veteran was afforded an opportunity to provide testimony at an RO hearing and was invited to submit additional evidence. The Board is not aware of the existence of additional relevant evidence in connection with the issues addressed in this decision. Therefore, the Board may proceed with its appellate review without prejudice to the veteran. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)); Bernard v. Brown, 4 Vet. App. 384 (1993). The requirement of submitting new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As previously pointed out, in a July 1986 decision, the veteran was denied service connection for bilateral hearing loss. This decision is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (2001). VA law provides that despite the finality of the prior adverse decision a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to a claim which has been disallowed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (effective prior to August 29, 2001). 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, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001). The Court has held that VA must reopen a claim when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim. Stanton v. Brown, 5 Vet. App. 563, 566 (1993). The standards regarding the issue of finality have been reviewed and upheld. Reyes v. Brown, 7 Vet. App. 113 (1994). The United States Court of Appeals (Federal Circuit Court) overruled a holding in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which limited the reopening of previously denied claims based upon "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." See Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Subsequently, the Court held that with regard to petitions to reopen previously and finally disallowed claims VA must conduct a three-part analysis, first, whether evidence submitted is "new and material" under 38 C.F.R. § 3.156(a), second, if it finds the evidence is "new and material" immediately upon reopening it must determine whether the claim is well grounded, based upon all of the evidence, presuming its credibility, and third, if the claim is well grounded to proceed to the merits, but only after ensuring that the duty to assist had been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999) (en banc). However, as noted above, on November 9, 2000, the President signed into law the VCAA which eliminated the requirement of a well-grounded claim. With respect to the issue of materiality, the Court has held that the newly presented evidence need not be probative of all the elements required to award the claim but that the evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 284 (1996) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table)). The Federal Circuit Court has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). 1. Bilateral hearing loss disability-Prior to September 1986 With respect to defective hearing, the law provides that impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 hertz is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The veteran's service medical records show that the veteran was found to have hearing loss disability during an ear infection in February 1986. In particular, the veteran demonstrated thresholds of 40, 45, 45 and 50 decibels in the right ear at 1000, 2000, 3000 and 4000 hertz. In the following month, the veteran demonstrated thresholds of 30, 25, 25 and 30 in the right ear at the same frequencies. Therefore while the veteran showed hearing loss during the course of his ear infection, he did not show such hearing loss when tested later. Moreover, the report of the medical examination for separation from service did not show that the veteran had hearing loss disability as described above. Finally, when examined at the initial VA examination in July 1986, the veteran did not demonstrate hearing loss disability. Since September 1986. The evidence received into the record since the 1986 rating decision includes reports of VA, military and private treatment, most of which are new inasmuch as they were not previously of record, but are cumulative in nature to the extent that they do not show that the veteran currently has bilateral hearing loss as defined by 38 C.F.R. § 3.385. Accordingly, this evidence is not material and is not so significant that it must be considered in order to fairly decide the claim. Significantly, the Board finds that the information provided in support of the application to reopen the claim for service connection for bilateral hearing loss does not include new evidence which when considered in light of applicable VA law bears directly and substantially upon the specific matter under consideration. See 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001). As "new and material" evidence has not been submitted, the claim must be denied. 2. A skin condition-Prior to September 1986. The basis for the previous denial of service connection was that the rating board in September 1986 did not find current evidence of psoriasis, the condition claimed at that time. The veteran's service medical records at that time showed that the veteran had been treated for skin complaints of persistent scaling and eruptions on the scalp from November 1985. The recorded diagnosis was psoriasis versus seborriasis. The veteran was noted to have been treated through February 1986 for these scalp complaints. Unfortunately, the report of the initial VA examination, conducted in July 1986 shows no evidence of any type of skin condition was noted on that examination. Psoriasis was reported by history. Since September 1986 The evidence received into the record since the September 1986 rating decision addresses the defect in the record noted in the previous denial of service connection. In particular, there is currently evidence of an existing skin condition that did not exist at the time of the previous rating decision. For example, a July 1995 private treatment report shows that the veteran had been receiving treatment for psoriasis. Likewise, an April 2000 statement from M.T. Pentel, M.D. is to the effect that the veteran had seborrheic dermatitis for many years. This new evidence satisfies the deficiency found in the prior denial of service connection. Thus, it is so significant that they must be viewed in the context of the other evidence in order to reach a fair determination on the merits of the veteran's claim. See §38 C.F.R. § 3.156(a) (effective prior to August 29, 2001). As "new and material" evidence has been received, the claim is reopened. The Board will now undertake additional development on the issue of service connection for a skin condition pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 20.903). After giving the notice and reviewing your response to the notice, the Board will prepare a separate decision addressing the service connection issue. Service Connection As noted above, VCAA was enacted, as Public Law No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). This new statute amended and clarified VA's duty to assist claimants in the development of the facts relevant to their claims, and is applicable to claims pending at the time of its enactment, including the present claims before the Board. Accordingly, the Board must assess whether the development of the veteran's claim seeking service connection for residuals of exposure to asbestos has been sufficient to meet the enhanced obligations embodied in the VCAA. In addition, on August 29, 2001, the Agency promulgated regulations to implement the statutory provisions. 66 Fed. Reg. 45,260 (August 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326). After a review of the claims folder in the context of the new law and regulations, the Board finds that VA has made reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim. In particular, the Board notes that VA has obtained records in the custody of VA. In addition, reports of treatment from the private medical providers identified by the veteran was obtained. This and other evidence obtained has been associated with the veteran's claims folder. The veteran has been afforded the proper notices concerning how to prevail in his claims. For example, the statement of the case and the supplemental statements of the case provided him with a list of the evidence considered, the statement of facts, law and regulations and reasons and bases for the denial of benefits. In addition, a February 2001 letter informed the veteran of changes brought about by VCAA, the type of evidence that he would need to substantiate the claims and measures that VA would take to assist him in developing his claims. The veteran has been provided numerous opportunities to provide additional evidence. For example, in July 2000 the veteran was afforded the opportunity to provided testimony on the issue on appeal at an RO hearing. A transcript of these proceedings has been associated with the veteran's claims folder. Furthermore, in a letter issued in February 2001, the veteran was advised that his claims had been readjudicated pursuant to the change in the law set forth above. By that letter, he was informed concerning what was required to establish service connection, in addition, he was informed what VA would do to assist him and what evidence he could submit to support his claims for service connection. However, he has not indicated that there exist any additional records that have not yet been associated with his claims folder. In view of the above, the Board finds that the notification and duty-to-assist provisions mandated by the VCAA of 2000 have been satisfied in this case. 38 U.S.C.A. §§ 5000, 5102, 5103, 5103A, 5107 (West 1999 & Supp. 2001); 38 C.F.R. § 3.159; 66 Fed. Reg. 45620-45632 (Aug. 29, 2001). Service connection may be established for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131. In the absence of chronicity at onset, a grant of service connection requires evidence of continuity of symptomatology demonstrating that a current disability was incurred in service. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be established where all the evidence of record demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d). 1. Residuals of Exposure to Asbestos. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The guidelines provide that the latency period for asbestos- related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos- related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). The Court has further held that in adjudicating asbestos- related claims, it must be determined whether development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. M21-1, part VI, para. 7.21(d)(1). In this case, it appears that the RO complied with the necessary procedures. In particular, the August 1997 letter sent to the veteran requested information concerning alleged exposure in service, a potential post-service exposure. The veteran's service medical records contain an Asbestos Medical Surveillance Program Questionnaire (undated) sent to all personnel who have been or who are significantly exposed to asbestos. The reviewer of the questionnaire indicated that the veteran was recommended for further surveillance. However, the veteran's service medical records do not indicate any diagnosis associated with asbestos exposure. Furthermore the report of the initial VA examination, conducted in July 1986 does not contain any reference to asbestosis or any other condition related to asbestos exposure. The chest X-ray did not reveal any abnormalities. The veteran provided testimony at an RO hearing in July 2000, at which time, he stated that he became concerned about asbestos when a service comrade died of asbestosis. However, he denied having a current diagnosis or treatment for that or any other condition presumed to be associated with asbestos exposure. In view of the foregoing, and in the absence of current evidence of residuals of asbestos exposure, the claim of entitlement to service connection is denied. The preponderance of the evidence does not support the current claim for service connection. 2. Blepharitis Blepharitis is an inflammation of the eyelids. Dorlands Illustrative Medical Dictionary, 27th ed. (1988). The veteran was treated for blepharitis during his active service as seen in the September 1990 service medical record. However, there is no post-service evidence of that condition. In particular, the initial VA examination, conducted in July 1986 revealed no pertinent abnormalities. The Board notes that the veteran provided testimony to the effect that he continued to have problems with blepharitis and was scheduled for an eye examination following the July 2000 RO hearing. However, the veteran failed to respond to the February 2001 request for additional information. Accordingly, the current record does not contain sufficient evidence to support a claim for service connection for blepharitis as there is not evidence of current disability. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. The appeal is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin disorder. To this extent, the appeal is allowed. Service connection for residuals of exposure to asbestos is denied. Service connection for blepharitis is denied. A. BRYANT Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.