Citation Nr: 0810275 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-28 712A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for malignant melanoma. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for cancer of the lymph nodes. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The veteran had active service from August 1956 until July 1976, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the April 2004 rating decision, the RO denied the claims on the basis that new and material evidence had not been submitted. In April 2007, the RO reopened the claims; however, notwithstanding the RO's determination, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed by the Board before the Board may consider the merits of the underlying claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, the issues before the Board involve whether new and material evidence has been received, as stated on the title page. A review of the record discloses the veteran raised claims for service connection for the shoulder, back and throat. These issues have not been adjudicated and are REFERRED to the RO for appropriate action. In this decision the Board reopens the claim for service connection for malignant melanoma. This claim is being REMANDED and is addressed in the REMAND portion of the decision below. This issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Rating decisions dated in June 1998 and February 2002 denied service connection for malignant melanoma, including squamous cell skin cancer. The veteran did not appeal these decisions and they are final. 2. The evidence associated with the claims file since the February 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for malignant melanoma and raises a reasonable possibility of substantiating the claim. 3. A rating decision dated in February 2002 denied service connection for cancer of the lymph nodes. The veteran did not appeal this decision and it is final. 4. The evidence associated with the claims file subsequent to the February 2002 rating decision does not relate to an unestablished fact necessary to substantiate the claim for cancer of the lymph node and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Evidence received since the final February 2002 RO determination that denied the veteran's claim of entitlement to service connection for malignant melanoma is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.1103 (2007). 2. Evidence received since the final February 2002 RO determination that denied the veteran's claim of entitlement to service connection for cancer of the lymph nodes is not new and material, and the veteran's claims for this benefits is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for malignant melanoma and cancer of the lymph nodes. The RO previously considered and denied claims for malignant melanoma in rating decisions dated in June 1998 and February 2002. The veteran did not timely appeal the February 2002 decision and as such, it has become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The RO previously considered and denied a claim for service connection for cancer of the lymph nodes in a rating decision dated in February 2002. The veteran did not timely appeal the February 2002 decision and as such, it has become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Therefore, the veteran's claims may be reopened only if new and material evidence has been secured or presented since the last final rating decision. See Glynn v. Brown, 6 Vet. App. 523 (1994). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the notice letter provided to the veteran on November 2003 included the definition of new and material, the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claims for service connection for malignant melanoma and cancer of he lymph nodes were previously denied. As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with 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). Initially, it is noted that the evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. Concerning the claim for malignant melanoma, the claim was initially adjudicated as a claim for skin cancer and was considered and denied in a June 1998 rating decision. Subsequently, a February 2002 rating decision denied skin cancer and malignant melanoma claims. The skin cancer claim was denied as there was no new and material evidence. Specifically, the RO noted there was no evidence the skin cancer was related to radiation exposure or linked as a presumptive condition to herbicide exposure. The malignant melanoma claim was denied as there was no evidence of a disability during service or any evidence of a nexus. At the time of the February 2002 rating decision, the evidence of record consisted of service medical records, VA outpatient treatment records, reports of VA examinations and statements of the veteran concerning his exposure to herbicides. Subsequently, additional VA outpatient treatment records, statements from the veteran explaining his exposure to ionizing radiation and a finding concerning radiation exposure have been associated with the claims file. The evidence received subsequent to the February 2002 rating decision is new, in that it was not previously of record; and is also material. The claim for malignant melanoma was initially denied as there was no evidence of a disability during service and no evidence of exposure to ionizing radiation or any other evidence of a nexus. Similarly the claim for skin cancer was denied based upon the lack of evidence of a nexus. The evidence received subsequent to the February 2002 rating decision includes the veteran's April 2006 statement explaining he was exposed to ionizing radiation while loading and unloading nuclear weapons in Korea. Presuming such evidence is credible for the limited purpose of ascertaining its materiality, this would therefore relate to the unestablished element of exposure to radiation which is necessary to substantiate the veteran's claim under the presumptive provisions concerning ionizing radiation. Therefore, the additional evidence received since the February 2002 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection for malignant melanoma is reopened. Concerning the claim for service connection for cancer of the lymph nodes, the claim was initially denied in a February 2002 rating decision. At the time of the February 2002 rating decision that denied service connection, the evidence of record consisted of service medical records, VA outpatient treatment records, reports of VA examinations and statements of the veteran concerning his exposure to radiation and herbicides. Subsequently, additional VA outpatient treatment records and findings concerning radiation exposure have been associated with the claims file. The evidence submitted subsequent to the February 2002 rating decision is new, in that it was not previously of record; however it is not material. In February 2002, the claim was denied as there was no evidence of a current disability. Although the evidence submitted since the final February 2002 decision includes current treatment records, none of these records demonstrates a current diagnosis of cancer of the lymph nodes. In the absence of a present disability that is related to service, a grant of service connection is clearly not supportable. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the additional evidence received since the February 2002 rating decision does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for cancer of the lymph nodes. Accordingly, the Board finds that the claim for service connection for cancer of the lymph nodes is not reopened. ORDER New and material evidence having been submitted, the claim for service connection for malignant melanoma is reopened. To this extent and to this extent only, the appeal is granted. New and material evidence has not been submitted and the application to reopen the claim of entitlement to service connection for cancer of the lymph nodes is denied. REMAND Having reopened malignant melanoma claim, including as secondary to exposure to ionizing radiation, the Board finds that further development is necessary. The veteran has alleged exposure based upon working with nuclear weapons while stationed in Korea. Service medical records include an October 1970 report of medical history and October 1970 flying training class III examination that reflect the veteran worked with nuclear weapons from 1958 until 1959. In claims concerning exposure to ionizing radiation, a request is to be made for any available records concerning the veteran's exposure to radiation. These records normally include, but may not be limited to, the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii) (2007). Although the RO requested the DD Form 1141, it did not perform any other development of the radiation claim. Accordingly, the case is REMANDED for the following action: The RO/AMC should perform a comprehensive review of the veteran's claimed in-service exposure to radiation and complete all necessary development for an ionizing radiation claim. All actions and responses should be documented in the claims folder. When the development requested has been completed, the claim should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is notified. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted. 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. 2007). ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs