Citation Nr: 0810815 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 04-41 753A ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection for a pulmonary disability. 2. Entitlement to service connection for memory loss. 3. Entitlement to service connection for depression. 4. Entitlement to service connection for a prostate disability. 5. Entitlement to service connection for a heart disability. 6. Entitlement to service connection for osteoarthritis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The veteran, who is the appellant, had qualifying Philippine service from May 1944 to January 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in September 2003, of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. In rating decision, dated March 2002, the RO denied the veteran's application to reopen the claim of service connection for a pulmonary disability; after the veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision. 2. The additional evidence presented since the last unappealed rating decision in March 2002 does not relate to an unestablished fact necessary to substantiate the claim of service connection for a pulmonary disability. 3. A chronic disability manifested by memory loss is not currently shown. 4. Depression was not affirmatively shown to have been present in service; depression, first documented after service, is unrelated to an injury or disease of service origin. 5. A prostate disability, including benign prostatic hypertrophy, was not affirmatively shown to be present during service; and the current prostate disability, benign prostatic hypertrophy, first documented after separation from service, is unrelated to a disease, injury, or event of service origin. 6. A heart disability, including arteriosclerotic heart disease, congestive heart failure, and a history of myocardial infarction, was not affirmatively shown to be present during service; and the current heart disability, arteriosclerotic heart disease, congestive heart failure and a history of a myocardial infarction, was not manifest to a compensable degree within one year of separation from service; and the current heart disability, arteriosclerotic heart disease, congestive heart failure, and a history of a myocardial infarction, first documented after service beyond the one-year presumptive period for heart disease as a chronic disease, is unrelated to an injury or disease of service origin. 7. Osteoarthritis to include the feet and knees was not affirmatively shown to have been present in service; arthritis was not manifest to a compensable degree within one year of separation from service; and the current osteoarthritis to include the feet and knees, first documented after service beyond the one-year presumptive period for arthritis as a chronic disease, is unrelated to an injury or disease of service origin. CONCLUSIONS OF LAW 1. The rating decision in March 2002 by the RO, denying the veteran's application to reopen the claim of service connection for a pulmonary disability, became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104 (2007). 2. The additional evidence presented since the rating decision of March 2002 by the RO, denying the application to reopen the claim of service connection for a pulmonary disability, is not new and material and the claim of service connection for a pulmonary disability is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. Memory loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 4. Depression was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 5. A prostate disability, including benign prostatic hypertrophy, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 6. A heart disability, including arteriosclerotic heart disease, congestive heart failure, and a history of a myocardial infarction, were not incurred in or aggravated by service and service connection for heart disease may not be presumed based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 7. Osteoarthritis to include the feet and knees was not incurred in or aggravated by service and service connection for arthritis may not be presumed based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and implemented in part at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in his possession that pertains to the claims. In a new and material evidence claim, the VCAA notice must include both the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As for the claim to reopen, the RO provided the veteran with pre-adjudication VCAA notice by letter dated in August 2003. The veteran was informed that new and material evidence was needed to reopen the claim of service connection for a pulmonary disability, that is, evidence not previously considered and that related to a fact not previously established, that is, evidence that a pulmonary disability, first shown after service, was related to service or a service connected disability. The veteran was also informed on the evidence needed to substantiate the underlying claim of service connection, namely, evidence of an injury or disease in service or event in service, causing injury or disease; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event in service or an already service connected disability. The veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. The veteran was asked to submit any evidence that would include that in his possession. The notice included the provision for the effective date of the claims, that is, the dates of receipt of the claim. As for content of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Kent v. Nicholson, 20 Vet. App. 1 (2006) (notice of the evidence necessary to reopen the claim and the evidence necessary to establish the underlying claim for the benefit sought); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006)(notice of the elements of the claim, except for the degree of disability assignable). To the extent that VCAA notice pertaining to degree of disability was not provided, as the claims are denied, no disability rating can be assigned as a matter of law and therefore there is no possibility of any prejudice to the veteran with respect to this limited VCAA content error. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. The RO has obtained service medical records and VA and private medical records. As the veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claims are required to comply with the duty to assist. While the RO did not conduct a medical inquiry in the form of a VA examination as to the claim to reopen, no such duty attaches until a claim is reopened. Moreover, as to the service connection claims, there is no evidence that the claimed disabilities may be associated with an established injury or disease in service. Under these circumstances, a medical examination with medical opinion is not required under 38 C.F.R. § 3.159(c)(4). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Application to Reopen Evidence Previously Considered In a rating decision, dated in June 1995, the RO denied the initial claim of service connection for a pulmonary disability on grounds that service medical records were negative for complaints, diagnoses, or treatment for a pulmonary disability and post-service records showing complaints, diagnoses, or treatment for a pulmonary disability are to far removed from service to relate to his military service. After the veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and by operation of law the rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a). Thereafter, in a Board decision dated in December 1999, the Board denied the application to reopen a claim of service connection for a pulmonary disability on grounds that the evidence was not new and material because it did not include medical evidence of a nexus between current pulmonary disabilities and military service. After the veteran was notified of the adverse determination, by operation of law the Board decision became final based on the evidence then of record. 38 U.S.C.A. § 7104(b). In a rating decision, dated in March 2002, the RO again denied the application to reopen the claim of service connection for a pulmonary disability on grounds that the evidence was not new and material because it did not include medical evidence of a nexus between service connected malaria and current pulmonary disabilities or between current pulmonary disabilities and military service. After the veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and by operation of law the rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a). At the time of the last final March 2002 rating decision, the evidence consisted of service medical records, private records, dated from June 1992 to December 1997, VA records, dated from August 1996 to March 2001, a VA medical opinion, dated in March 1998, and testimony at a May 1998 hearing as well as the veteran's written statements to the RO. The service medical records show that the veteran was treated for malaria in April 1945. The service medical records contain no complaint, finding, history, or treatment for a pulmonary abnormality. After service, the private medical records show that the veteran complained of and was treated for shortness of breath and other pulmonary problems starting in 1993. VA records show similar problems starting in 1997. Chest X-rays in 1993, 1994, 1998, and 1999 revealed findings consistent with pneumonitis or discoid atelectasis. In February 1994, pulmonary function test showed moderate restrictive ventilatory impairment. In 1998, dyspnea with marked obstructive disease was documented. In 1999, both obstructive and restrictive lung disease was shown. In 2001, reactive airway disease was noted. As for the origins of the pulmonary pathology, in March 1998, a VA physician expressed the opinion that that the service medical records showed that the veteran had plasmodium vivax malaria and that this type of malaria was not known to produce lung pathology as a complication. In testimony in May 1998, as well as in other statements, the veteran stated that he was being treated for a pulmonary condition which was caused by either his military service or his service-connected malaria. The veteran's friend testified in May 1998 that the veteran's pulmonary disability was secondary to his service-connected malaria. A prior unappealed rating decision of the RO, which has become final, may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. The Current Claim to Reopen The current claim to reopen was received at the RO in June 2003. Whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed by the Board before the Board can consider the underlying claim. Therefore, regardless of the RO's decision, the Board must initially address the question of whether new and material evidence has been presented to reopen the claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The regulatory definition of new and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening a claim, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The additional evidence, dated from 1998 to 2004, both private and VA, documents restrictive airway disease. Evidence of restrictive airway disease is either redundant or cumulative evidence. Redundant evidence is evidence previously considered. Cumulative evidence is evidence that supports facts previously established and considered. Neither redundant nor cumulative evidence meets the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). As for the statements of the veteran, his wife, and friends that the veteran's current pulmonary disability is due to the veteran's military service or malaria, where as here the determinative issues involve a question of a medical diagnosis or of medical causation, competent medical evidence is required to substantiate the claim as a layperson is not competent, that is, not qualified through education, training, and expertise to offer an opinion on a medical diagnosis, not capable of lay observation, or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Moray v. Brown, 5 Vet. App. 211, 214 (1995) (lay assertions of medical causation cannot serve as a predicate to reopen a previously denied claim). For the above reasons, the additional evidence is not new and material and the claim of service connection for a pulmonary disability is not reopened. 38 C.F.R. § 3.156. As the claim is not reopened, the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Claims of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. For a veteran who served 90 days or more of active service during a war period or after December 31, 1946, there is a presumption of service connection for arthritis, including osteoarthritis, and cardiovascular disease, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also 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). Factual Background The service medical records contain no complaint, finding, history, or treatment for a chronic disability manifested by memory loss, depression, a prostate abnormality, a heart disease, or osteoarthritis. After service, private and VA records document a prostate disability, benign prostatic hypertrophy, in 1993. Heart disease to include arteriosclerotic heart disease, congestive heart failure, and a history of a myocardial infarction were documented in 1993 and 1994. Osteoarthritis by X-ray was first documented in 1990. VA records document depression in 2002, and memory loss associated with depression in 2003. Analysis On the basis of the service medical records, a chronic disability manifested by memory loss, depression, a prostate disability, a heart disability, or osteoarthritis was not affirmatively shown to have been present during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As none of the disabilities were noted or observed during service as evidenced by the service medical records or other evidence and as there is otherwise no other evidence of the disabilities for many decades following the veteran's separation from military service, the principle of continuity of symptomatology does not apply. Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997). As for service connection based on the initial documentation of the disabilities after service under 38 C.F.R. § 3.303(d), there is no medical evidence of a causal association or causal link between a chronic disability manifested by memory loss, depression, a prostate disability, a heart disability, and osteoarthritis and an established injury or disease of service origin. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Also, the initial documentations of heart disease, arteriosclerotic heart disease, congestive heart failure, and a history of a myocardial infarction, in 1993, and of osteoarthritis in 1990, are well beyond the one-year presumptive period for manifestation of heart disease or arthritis as chronic diseases under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. As for the veteran's statements and other witnesses relating the veteran's current disabilities to his military service, where as here, the question is one of medical causation, competent medical evidence is required to substantiate the claims because a lay person is not qualified through education, training, and expertise to offer an opinion on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore the statements of the veteran and of other affiants are not competent evidence on the question of medical causation, that is, the relationship between the current disabilities and the veteran's military service. As the Board may consider only independent medical evidence to support its findings as to questions of medical causation, not capable of lay observation, and as there is no competent evidence favorable to the claims, the preponderance of the evidence is against the claims of service connection, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER As new and material evidence has not been presented, the claim of service connection for a pulmonary disability is not reopened and the appeal is denied. Service connection for a chronic disability, other than depression, manifested by memory loss is denied. Service connection for depression is denied. Service connection for a prostate disability, benign prostatic hypertrophy, is denied. Service connection for a heart disability, arteriosclerotic heart disease, congestive heart failure, and a history of myocardial infarction, is denied. Service connection for osteoarthritis to include the feet and knees is denied. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs