Citation Nr: 0810938 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-07 049A ) 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 a claim of entitlement to service connection for actinic keratosis, and if so, whether the claim should be granted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for skin cancer, and if so, whether the claim should be granted. 3. Entitlement to service connection for an 8th cranial nerve disability. 4. Entitlement to service connection for reflex sympathetic dystrophy. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative disc disease of the lumbar spine, and if so, whether the claim should be granted. 6. Entitlement to service connection for residuals of radiation exposure, to include dental disability, peripheral neuropathy, Crohn's disease, cataracts, coronary artery disease, chronic obstructive pulmonary disease (COPD), gall bladder disease, and chronic peptic ulcer disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The veteran served on active duty from December 1951 to December 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in February 2008. A transcript of the hearing is associated with the claims files. A motion to advance this case on the docket due to the appellant's age was granted by the Board in March 2008. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). The issues of entitlement to service connection for claimed residuals of radiation exposure, to include dental disability, peripheral neuropathy, skin cancer, Crohn's disease, cataracts, coronary artery disease, COPD, gall bladder disease, and peptic ulcer disease, as well as the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative disc disease of the lumbar spine, and if so, whether the claim should be granted, are addressed in the REMAND that follows the order section of this decision. FINDINGS OF FACT 1. In an unappealed September 1994 rating decision, the RO denied service connection for skin cancer. 2. The evidence associated with the claims files subsequent to the September 1994 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim; is neither cumulative nor redundant of evidence already of record; and raises a reasonable possibility of substantiating the claim. 3. In an unappealed April 2001 rating decision, the RO denied service connection for actinic keratosis. 4. The evidence associated with the claims files subsequent to the April 2001 rating decision does not raise a reasonable possibility of substantiating the claim. 5. The veteran currently has no disability of the 8th cranial nerve. 6. The veteran does not currently have reflex sympathetic dystrophy. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for skin cancer. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 2 New and material evidence has not been received to reopen a claim of entitlement to service connection for actinic keratosis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. An 8th cranial nerve disorder was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 4. Reflex sympathetic dystrophy was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for an 8th cranial nerve disorder and reflex sympathetic dystrophy. He is also seeking to reopen claims of entitlement to service connection for skin cancer and actinic keratosis. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the service connection claims for an 8th cranial nerve condition and reflex sympathetic dystrophy, the record reflects that the originating agency provided the veteran with the notice required under the VCAA by letter mailed in January 2003, prior to its initial adjudication of the claims. Although the originating agency did not specifically request the veteran to submit all pertinent evidence in his possession until a subsequent letter sent in May 2005, it did inform him in the original letter of the evidence that would be pertinent and request him to submit such evidence or provide VA with the information and any authorization necessary for VA to obtain the evidence on the his behalf. Therefore, the Board believes that the veteran was on notice of the fact that he should submit any pertinent evidence in his possession. Although the veteran was not provided notice of the type of evidence necessary to establish a disability ratings and effective dates until January 2008, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for an 8th cranial nerve disability or reflex sympathetic dystrophy. Consequently, no disability rating or effective date will be assigned, so the failure to provide notice with respect to those elements of the claims was no more than harmless error. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, with respect to the actinic keratosis claim, the notice letter provided to the appellant in May 2005 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. Although notice that complies with the Kent provisions has not been provided with respect to the claim of entitlement to service connection for skin cancer, as that claim is being reopened, the Board finds that the veteran has not been prejudiced by any notice error. The Board also notes that the veteran has been afforded appropriate VA examinations and service medical records and pertinent VA medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate these claims. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria General Provisions 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. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2007). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. 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. 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). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas- Gonzalez v. West, 12 Vet. App. 321, 328 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). Burdon of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis New and Material Evidence The Board notes that service connection was denied for skin disorders in an April 1985 Board decision. However, the disorders addressed in that decision and in the appealed RO rating decision included folliculitis and a pilonidal cyst. The first decision that addressed actinic karatosis was in April 2001. Entitlement to service connection for skin cancer has, at times, been treated interchangeably with the actinic karatosis claim. Skin cancer was specifically addressed in final rating decisions in September 1994 and April 2001. Both skin conditions were claimed as resulting from radiation exposure, and both were denied due to the lack of evidence establishing such in-service exposure. Since the April 2001 decision, the evidence received includes a VA medical opinion dated in April 2004 linking skin cancer to radiation exposure in the service. In addition, the evidence received since the April 2001 decision also includes additional testimony from the veteran pertaining to his in-service exposure to radiation, and statements from fellow servicemen that corroborate his statements. For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The additional evidence concerning the veteran's exposure to radiation in service and the medical evidence linking the veteran's skin cancer to radiation exposure is clearly new and material. Accordingly, reopening of the skin cancer claim is in order. Actinic keratosis is not among the diseases listed as radiogenic under 38 C.F.R. § 3.311, and no medical or scientific evidence linking this disorder to service has been received since the April 2001 decision. Therefore, the evidence added to the record since the April 2001 decision is not sufficient to raise a reasonable possibility of substantiating that claim. Accordingly, none of the evidence added to the record since the April 2001 decision is material to this claim, and reopening of this claim is not in order. Service Connection The medical evidence of record does not establish a diagnosis of an 8th cranial nerve disorder or reflex sympathetic dystrophy. Although a VA treatment record dated in January 2002 indicates that surgery conducted for neck cancer "possibly" injured a nerve to the left ear, no diagnosis was in fact included in the report. The reference is therefore considered inconclusive. The Board further notes that service connection is not in effect for neck cancer. Similarly, there is no diagnosis of reflex sympathetic dystrophy. A letter dated in March 1996 from a private physician D.N., M.D. states that the veteran's wife brought in information on reflex sympathetic dystrophy from the RSD Society. D.N. commented that, "I don not believe that he has RSD." Although the veteran and his spouse are competent to describe the veteran's symptoms, as laypersons, without medical training, they are not qualified to render a diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). It is now well-settled that in order to be considered for service connection, a claimant must have a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. Symptoms alone, without a finding of an underlying disorder, cannot be service-connected. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Board therefore finds that in the absence of a competent diagnosis of an 8th cranial nerve disorder or reflex sympathetic dystrophy, service connection is not in order. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). ORDER New and material evidence not having been received, reopening of the claim of entitlement to service connection for actinic keratosis is denied. New and material evidence having been received, reopening of the claim of entitlement to service connection for skin cancer is granted. Entitlement to service connection for 8th cranial nerve disability is denied. Entitlement to service connection for reflex sympathetic dystrophy is denied. REMAND The Board notes that skin cancer is recognized as a radiogenic disease under 38 C.F.R. § 3.311, which provides criteria for developing claims for service connection for radiogenic diseases but does not provide a presumption of service connection. Although none of the veteran's other claimed disabilities are among the listed radiogenic diseases in 38 C.F.R. § 3.311, a disorder will be considered under the provisions of that section if the claimant has submitted or cited competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). In this case, an April 2004 VA medical opinion indicates that peripheral neuropathy, Crohn's disease and cataracts may be associated with exposure to ionizing radiation. In a November 1998 opinion, a private physician, J.M.R., Jr., M.D., concluded that it is "highly probable" that coronary artery disease, COPD, gall bladder disease, peptic ulcer disease, gum bleeding and tooth loss are a direct result of atomic radiation poisoning while the veteran was in the military service. Therefore, the Board finds that those claims must be developed under the provisions of 38 C.F.R. § 3.311 as well. Although J.M.R. also mentioned calcium deposits and muscle spasms, these are symptoms and not diagnoses, and therefore cannot be service connected. See Sanchez-Benitez, 259 F.3d 1356 [symptoms alone, without a finding of an underlying disorder, cannot be service- connected]. As the threshold requirements for consideration under 38 C.F.R. § 3.311 are met, an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1). The claims should be referred to the Undersecretary for Health for preparation of a dose estimate. See 38 C.F.R. § 3.311(b)(1)(iii). While it appears that some development specified under 38 C.F.R. § 3.311 has been accomplished in this case, including obtaining a statement from the Defense Threat Reduction Agency that it could find no record of the veteran's participation in Operation Upshot-Knothole, a dose estimate has not been obtained from the VA Undersecretary for Health based on the veteran's account of having worked on vehicles that were exposed to ionizing radiation. In addition, the Board notes that while notice compliant with the Court's decision in Kent v. Nicholson, 20 Vet. App. 1 (2006) was provided for the veteran's actinic keratosis claim, it has not been provided with respect to the back claim. The Board points out that although the RO adjudicated the claim on the merits, the Board must first examine whether the evidence warrants reopening the claim. This is significant to the Board because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board does not have jurisdiction to review the claim on a de novo basis in the absence of a finding that new and material evidence has been submitted]. Before the Board can address this issue, proper notice must be sent to the veteran. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should send the veteran a letter requesting him to provide any pertinent evidence in his possession and any outstanding medical records pertaining to treatment or evaluation of a low back disorder, peripheral neuropathy, skin cancer, Crohn's disease, cataracts, coronary artery disease, COPD, gall bladder disease, and peptic ulcer disease, since his discharge from service, or the identifying information and any necessary authorization to enable VA to obtain such records on his behalf. The notice with respect to the low back disorder should comply with the Court's decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), and should inform the veteran of the unique character of the evidence that must be presented. Such notice should address the bases for the denial in the prior decision and describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. 2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the veteran and his representative and request them to submit the outstanding evidence. 3. The RO or the AMC should obtain an opinion from the VA Undersecretary for Health, as specified in 38 C.F.R. § 3.311(a)(1). For purposes of this opinion, it should be presumed that, although the veteran did not directly participate in Operation Upshot-Knothole, he came into direct contact with vehicles that were used during that operation, and that were directly exposed to ionizing radiation. For details concerning the circumstances of the veteran's alleged radiation exposure, the VA Undersecretary for Health should review the transcript of the veteran's February 2008 Board hearing. 4. The case should then be referred to the Under Secretary for Benefits for further consideration and an opinion in accordance with 38 C.F.R. § 3.311 (c) with respect to each of the remanded claims. 5. The RO or the AMC should also undertake any other development it determines to be warranted. 6. Then, the RO or the AMC should readjudicate the veteran's claims. If any benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs