Citation Nr: 0810993 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-03 172 ) 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 service connection for a lung disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for diabetes mellitus, claimed as due to exposure to herbicides (Agent Orange). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from September 1976 to August 1977. This appeal to the Board of Veterans' Appeals (Board) is from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Originally, there were other claims being contested. However, in his January 2006 substantive appeal (VA Form 9), the veteran indicated he was only appealing the claims for a lung condition, bilateral hearing loss, and diabetes mellitus. Therefore, these are the only issues before the Board. See 38 C.F.R. § 20.200 (2007). FINDINGS OF FACT 1. Evidence received since a January 2003 RO decision is merely duplicative or cumulative of evidence previously considered or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a lung condition. 2. The veteran does not have a diagnosis of bilateral hearing loss. 3. There is no correlation between the veteran's diabetes mellitus and his military service. CONCLUSIONS OF LAW 1. The January 2003 decision denying service connection for a lung condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2007). 2. New and material evidence has not been submitted since that January 2003 rating decision to reopen the claim for service connection for a lung condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. The veteran does not have bilateral hearing loss as a result of disease or injury incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 4. The veteran's diabetes mellitus also was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of a letter dated in August 2004, the RO advised the veteran of the evidence needed to substantiate his claims and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Note, as well, that the RO issued that VCAA notice letter prior to initially adjudicating his claims, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). That letter also specifically asked that he provide any evidence in his possession that pertains to his claims. Id. at 120-21. Regardless, VA's Office of General Counsel has indicated requiring VA include such a request as part of the notice provided to a claimant under those provisions is obiter dictum and, therefore, not binding on VA. See VAOPGCPREC 1-2004 (Feb. 24, 2004) (OGC discussed this in response to the holding in Pelegrini v. Principi, 17 Vet. App. 183 (2002) (Pelegrini I), but the Court used basically the same language in Pelegrini II, so it is equally applicable). The Board is bound by the precedent opinions of VA's General Counsel, as the Chief Legal Officer of the Department. See 38 U.S.C.A. § 7104(c) (West 2002). Even if there arguably is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post- decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to the veteran over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). There are specific VCAA notice requirements concerning petitions to reopen previously denied claims, and the August 2004 VCAA letter the RO issued complied with these requirements. That is, the letter informed the veteran of what constituted new and material evidence specifically in the context of his previously denied claim for service connection for a lung condition. He was informed that new evidence is evidence submitted to VA for the first time, which is not cumulative or tends to reinforce a previously established point. He was informed that material evidence relates directly to substantiation of the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006) (indicating the VCAA notice must apprise the veteran of the specific bases of the prior denial so he may have the opportunity to respond by submitting evidence overcoming those prior deficiencies). Consider also that a more recent May 2006 letter informed the veteran of the downstream disability rating and effective date elements of his claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). And there was no reason to go back and readjudicate his claims after providing that additional VCAA notice, such as in a supplemental statement of the case (SSOC), because he did not identify or submit any additional evidence in response to that notice. Cf. Medrano v. Nicholson, 21 Vet. App. 165, 172 (2007) (where after VA provides a content-compliant VCAA notice, on all requisite notice elements - albeit in an untimely manner - and a claimant subsequently informs VA there is no further evidence to submit, the failure by the RO to conduct a subsequent readjudication is not prejudicial because the result of such a readjudication would be no different than the previous adjudication). With respect to the duty to assist, the RO obtained the veteran's service medical records (SMRs), service personnel records, VA medical records, and Social Security Administration (SSA) records. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board realizes etiological opinions have not been obtained for the veteran's bilateral hearing loss and diabetes mellitus claims. However, the Board finds that the evidence, discussed below, which indicates he did not have relevant complaints or receive treatment for these claimed disorders during service or that there is any competent medical evidence suggesting a nexus (i.e., etiological link) between his military service and these disorders, warrants concluding a remand for an examination and/or opinion is unnecessary to decide these claims. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4) (2005). As his service and post-service medical records provide no basis to grant these claims, and indeed provide evidence against them, the Board finds no basis for obtaining a VA examination and opinion. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, simply stated, these McLendon standards are not met. With regards to the claim for bilateral hearing loss, the first element is not met because the veteran does not have a current diagnosis of this claimed disorder. And with regards to the diabetes mellitus claim, he does not qualify for any presumption (such as a tour in Vietnam and presumed exposure to Agent Orange while there). Nor is there any indication that his diabetes mellitus otherwise may be associated with his military service. New and Material Evidence Claim In December 1994, the RO denied the veteran's claim for service connection for a lung disorder (variously considered as pneumonia, bronchitis, asthma, and chronic obstructive pulmonary disease (COPD)). And although appropriately notified of that decision and apprised of his procedural and appellate rights, he did not perfect a timely appeal. He also did not timely appeal a more recent January 2003 RO decision that denied his petition to reopen this claim. So both decisions are final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200, 20.302, 20.1103 (2007). If new and material evidence is presented or secured with respect to a claim that has been denied, and not appealed, then VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. The veteran filed his current petition to reopen this claim in June 2004. Therefore, under the revised standards (effective for petitions to reopen filed on or after August 29, 2001), new evidence means existing evidence not previously submitted to agency decisionmakers. 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 already of record at the time of the last prior final denial of the claim sought to be opened. It must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). The additional evidence received since the January 2003 and December 1994 denials consist of VA treatment records, personal statements from the veteran, his SSA records, and a response from the National Personnel Records Center (NPRC) - a military records repository. With the exception of some duplicate medical evidence, all the evidence listed above is generally new, in that it has not been submitted to VA before. However, this additional evidence is not also material because it does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The only piece of evidence that addresses the veteran's lung problems is his October 2004 letter wherein he stated, "my lungs are at about 60 percent." This proclamation does not relate to an unestablished fact necessary to substantiate his claim because it does not tend to suggest that any current lung problem he may have (even if accounting for his only 60 percent respiratory capacity) is attributable to his military service. He cannot, himself, establish this required linkage since the Court has held that a layman is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Indeed, in the Routen decision, the Court specifically noted that "[l]ay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. 5108." See, too, Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6, 11 (1996); and Moray v. Brown, 5 Vet. App. 211, 214 (1993). Accordingly, there is no new and material evidence since the RO's more recent January 2003 decision to reopen the claim for service connection for a lung disorder. 38 U.S.C.A. § 5108. See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (wherein the Court held that VA adjudicators need only refer to the most recent final disallowance of a claim for determining whether there is new and material evidence to reopen the claim) Furthermore, in the absence of new and material evidence, the benefit-of- the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Claims Service connection may be granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As mentioned, the first and perhaps most fundamental requirement for any service-connection claim is competent evidence of the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran does not have a current diagnosis of bilateral hearing loss, aside from the equally important question - even assuming he did - of whether he has sufficient hearing loss to be considered an actual disability by VA standards. See 38 C.F.R. § 3.385 (indicating impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent). Here, there are no audiological records showing an assessment of the veteran's hearing, and his post-service medical records also do not show complaints of hearing loss. Therefore, he does not have a disability for VA compensation purposes, and his claim must be denied because the preponderance of the evidence is unfavorable, so the benefit- of-the-doubt doctrine does not apply. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The veteran has a current diagnosis of diabetes mellitus, but even so, there is no indication of a correlation between this condition and his military service. Establishing entitlement to service connection not only involves proving one has the condition claimed, but also showing it is related to military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). This simply has not been done in this instance. The veteran asserts that his diabetes mellitus was caused by exposure to herbicides. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The following diseases are associated with herbicide exposure for the purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft- tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). As even he acknowledges, the veteran did not serve in Vietnam during the Vietnam era and, therefore, could not possibly have been exposed to herbicides (e.g., the dioxin in Agent Orange) in that capacity. Instead, he alleges he was exposed to herbicides elsewhere - while stationed at Redstone Arsenal in Alabama. Therefore, his actual exposure to herbicides must be independently verified in order for the presumption set forth in 38 C.F.R. § 3.309 to apply. The RO contacted the NPRC to determine whether he was exposed to herbicides while stationed at Redstone Arsenal, and no evidence of exposure to herbicides there was found. Furthermore, VA has received from the Department of Defense (DOD) a list of locations outside of the Republic of Vietnam where herbicides were used or tested over the years. And the DOD has not confirmed that herbicides were used at the Redstone Arsenal, where the veteran asserts that he was exposed. So there is no evidence to support the assertion that the veteran was exposed to herbicides at the Redstone Arsenal in Alabama. His assertions regarding herbicide expose are outweighed by the fact that the DOD did not include Redstone Arsenal on its list of locations where herbicides were used or tested outside of Vietnam, and since the NPRC also could not find evidence of herbicide exposure at Redstone. Therefore, the Board finds that the presumptive regulations regarding exposure to herbicides are not applicable. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Since service connection cannot be established on a presumptive basis, the Board will address whether service connection is established on an alternative direct basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The veteran's service medical records (SMRs) are completely unremarkable for any relevant complaints or diagnosis of or treatment for diabetes mellitus. He was not diagnosed with this condition until November 2004, almost 30 years after leaving the military. The Board must note that the lapse of so many years between his separation from service and the first manifestation of this claimed disorder is a factor for consideration in deciding his service connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Also, there is no medical nexus evidence of record otherwise establishing the necessary link between this condition and his military service, which ended in August 1977. Moreover, in the absence of this link, the preponderance of the evidence is against his claim - in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER As new and material evidence has not been submitted, the claim for service connection for a lung disorder is not reopened. Service connection for bilateral hearing loss is denied. Service connection for diabetes mellitus is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs