Citation Nr: 0811231 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-11 367 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for a chronic obstructive pulmonary disease (COPD)/emphysema, to include as secondary to herbicide exposure, has been received and, if so, whether service connection is warranted. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The veteran served on active duty from August 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2005 and September 2005 rating decisions of the RO in Muskogee, Oklahoma, which denied a petition to reopen a claim for service connection for COPD/emphysema and a claim for service connection for tinnitus. The veteran requested a hearing before the Board in his March 2006 VA Form 9. The RO scheduled a Travel Board hearing for June 2007, but the veteran failed to appear. He has not provided an explanation for his failure to appear or requested a new hearing. As such, the Board may proceed with appellate review. FINDINGS OF FACT 1. In a July 2002 RO decision, of which the veteran was notified in the same month, the veteran's claim of entitlement to service connection for COPD/emphysema was denied. 2. Evidence received since the July 2002 rating decision is new to the claims file, but does not relate to an unestablished fact necessary to substantiate the claim of whether COPD/emphysema was incurred or aggravated by service, and is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. Tinnitus first became manifest many decades after service separation; the most probative evidence does not establish a link between tinnitus and a disease, injury or event in service. CONCLUSIONS OF LAW 1. The July 2002 rating decision denying the claim of service connection for COPD/emphysema is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. New and material evidence has not been submitted for the claim of entitlement to service connection for COPD/emphysema; the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folder. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act (VCAA) With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. For petitions to reopen previously denied claims for service connection, VCAA notice must define what qualifies as "new" and "material" evidence and describe what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Prior to initial adjudication of the veteran's petition to reopen the claim for service connection for COPD/emphysema, letters dated in August 2004 and October 2004 fully satisfied the duty to notify provisions with respect to the COPD/emphysema claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. Additionally, prior to initial adjudication of his claim for service connection for tinnitus, a letter dated in June 2005 fully satisfied the duty to notify provisions for the tinnitus claim. Id. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The August 2004, October 2004 and June 2005 letters told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-121. The August 2004 letter also informed the veteran of the requirements of reopening a previously denied claim through new and material evidence and informed him of the basis of the prior denial in his claim for COPD/emphysema. See Kent. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and service personnel records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced any outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes, however, that medical examinations are not provided for petitions to reopen. See 38 C.F.R. § 3.159. The Board concludes an opinion is not needed in this case because the only evidence indicating the veteran "suffered an event, injury or disease in service" is the lay statements of the veteran. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). There is no reasonable possibility that a medical opinion would aid in substantiating the veteran's claim since it could not provide evidence of a past event. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Petition to Reopen The veteran brought a previous claim for service connection for COPD/emphysema. This claim was denied in a July 2002 rating decision because the evidence did not show that the veteran had been diagnosed with COPD/emphysema in service. The rating decision also noted that COPD/emphysema was not considered to be a condition associated with herbicide exposure. In other words, there was no evidence of a nexus between the veteran's COPD/emphysema and service, as he alleged. The veteran was notified of the decision and his appellate rights in that same month. He did not initiate an appeal. Thus the July 2002 decision is final. 38 U.S.C.A. § 7104. Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "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. The 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Further, evidentiary assertions by the veteran must be accepted as true for these purposes, except where the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19 (1993). Lay assertions of medical causation or diagnosis do not constitute credible evidence, as lay persons are not competent to offer medical opinions. Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The July 2002 RO rating decision denied the veteran's claim because COPD/emphysema was not manifested during service and because there was no evidence to link COPD/emphysema to herbicide exposure. In essence, in order for the claim to be reopened, the veteran must submit evidence addressing the etiology of his COPD/emphysema. Since the issuance of the July 2002 RO decision, the veteran has submitted a number of medical treatment records that cover a period from 1999 to 2005 and private medical statements dated in August 2005 and September 2005. While some of the treatment records are redundant of records previously associated with the claims file, the remaining records reflect ongoing medical treatment following the July 2002 RO decisions. The August 2005 and September 2005 medical statements establish that the veteran has been diagnosed with COPD as well as a number of other conditions. However, these treatment records and medical statements do not indicate that the veteran's current lung condition is related to service. Rather, they simply confirm that the veteran has a current diagnosis of COPD, an element of service connection that was previously established and considered in the July 2002 RO decision. Given that the newly submitted evidence relates to a diagnosis rather than etiology, it does not raise a reasonable possibility of substantiating the claim and therefore does not constitute new and material evidence. In his March 2006 VA Form 9, the veteran contends that COPD was caused by exposure to Agent Orange. However, as noted above, herbicide exposure is an issue that was already addressed in the July 2002 RO decision. The RO previously explained that COPD/emphysema is not a condition that is attributable to herbicide exposure. Furthermore, the veteran's statements regarding causation are largely duplicative and not competent because, as a lay person, he has not been shown to be capable of making medical conclusions. See King, supra; Espiritu, supra. For these reasons, the veteran's lay statements concerning the etiology of his disability do not qualify as new and material evidence. Accordingly, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection. The petition to reopen must fail. See 38 C.F.R. § 3.156(a). III. Service Connection The veteran contends that he developed tinnitus as a result of noise exposure during service. For the reasons that follow, the Board concludes that service connection for tinnitus is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In the present case, the veteran's service medical records are negative for any complaints, diagnosis or treatment of tinnitus. His July 1967 separation examination indicates that his ears were normal. Service personnel records show that the veteran's military occupational specialty (MOS) was a light vehicle driver and that he was stationed in the Republic of Vietnam from July 1966 to July 1967. He was awarded the Vietnam Campaign Medal and the Vietnam Service Medal, among other decorations. The veteran's MOS and his awards do not establish that he engaged in combat or that he was otherwise exposed to noise. The Board acknowledges the veteran's assertion that he suffered acoustic trauma in Vietnam on several occasions. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., being in close proximity to the explosion of an ammunition dump, being next to an artillery unit that fired weapons through the night, and being near mortar attacks. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The veteran as a lay person, however, has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to him through his senses, he does not have medical expertise. Therefore, he cannot provide a competent opinion regarding the etiology of his alleged tinnitus. There is no evidence of record to show that the veteran had any complaints, diagnosis or treatment of tinnitus prior to the filing of the present service connection claim in 2005, many decades following service separation. The Board notes that the veteran filed earlier claims for COPD/emphysema and post-traumatic stress disorder in 2002. There was no mention at the time of the veteran experiencing ringing in the ears. Furthermore, the record contains no evidence to indicate that the veteran has been diagnosed with or treated for tinnitus at any point in time. Taking into account all of the relevant evidence of record, service connection for tinnitus is not warranted. As such, the Board finds that the preponderance of the evidence is against the veteran's claims. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The appeal to reopen the claim for service connection for COPD/emphysema, to include as secondary to herbicide exposure, is denied. Service connection for tinnitus is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs