Citation Nr: 0815221 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 06-17 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage), to include as due to inservice exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from October 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. Entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage), to include as due to inservice exposure to ionizing radiation, was denied by an unappealed January 2004 rating decision. 2. Evidence associated with the claims file since the unappealed January 2004 rating decision does not raise a reasonable possibility of substantiating the veteran's claim for entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage), to include as due to inservice exposure to ionizing radiation. CONCLUSION OF LAW Evidence submitted to reopen the claim of entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage), to include as due to inservice exposure to ionizing radiation, is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the veteran's claim to reopen the issue of entitlement to service connection for peripheral neuropathy of the lower extremities, 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to the initial adjudication of the veteran's claim, a March 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006) (holding that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish entitlement to the underlying claim). Further, a March 2006 letter advised the veteran of effective dates and the assignment of disability evaluations. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). Moreover, failure to provide this notice would not prejudice the veteran because the claim for entitlement to service connection for peripheral neuropathy of the lower extremities is not reopened. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letter also requested that the veteran provide any evidence in his possession that pertained to his claim. 38 C.F.R. § 3.159(b)(1). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). In the case of a claim to reopen, the VCAA explicitly provides that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f). Nevertheless, VA has a duty, in order to assist claimants, to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran's service medical records, service personnel records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In addition, service connection may 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). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the RO denied the veteran's initial claim seeking service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage), to include as due to inservice exposure to ionizing radiation, in a January 2004 rating decision. Specifically, the RO's decision found that there was no evidence of inservice exposure to ionizing radiation during service. Notice of the RO's January 2004 rating decision was sent to the veteran that same month. He did not file a timely notice of disagreement. Accordingly, the January 2004 RO decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2007). In February 2005, the veteran filed his present claim seeking to reopen the issue of entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage), to include as due to inservice exposure to ionizing radiation. In its September 2005 decision, the RO determined that new and material evidence was not presented to reopen the veteran's claim for entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage), to include as due to inservice exposure to ionizing radiation. Such a determination, however, is not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. If the claim is so reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). 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 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) (2007). Because the January 2004 rating decision is the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). At the time of the RO's January 2004 rating decision, the veteran had alleged that he was exposed to ionizing radiation during his active duty military service which resulted in his current diagnosis of peripheral neuropathy of the bilateral lower extremities. Evidence of record at the time of the January 2004 rating decision included the veteran's service medical records which are completely silent as to any complaints of or treatment for peripheral neuropathy of the lower extremities. The veteran's separation examination, performed in March 1972, listed his lower extremities as normal. In addition, the record at the time of the January 2004 rating decision included the veteran's service personnel records. A Record of Occupational Exposure to Ionizing Radiation, Form DD 1141, listed the veteran's total dose exposure as "0" from July 1970 to May 1971, while he was stationed at NTS, Nevada. A response from the Department of the Army, received in January 2004, noted that they were unable to locate any records of the veteran's claimed inservice exposure to ionizing radiation. Post service treatment records at the time of the RO's January 2004 rating decision consisted of medical treatment records, dated from 1997 to 2001. A review of these records revealed diagnoses of peripheral neuropathy of the lower extremities. A treatment report, dated in April 1997, noted the veteran's history of painful sensations in both feet, worse on the left, for the past two and one-half to three years. A subsequent treatment report, dated in April 1997, noted diagnoses of small fiber peripheral neuropathy, probable idiopathic, and secondary dysesthetic nerve pain. A medical opinion letter, dated in April 2001, from N. Schlageter, M.D., noted his opinion that the veteran's radiation exposure in the late sixties was causing his painful peripheral neuropathy. Evidence submitted after the unappealed January 2004 rating decision includes certificates noting the veteran's participation in the Mint Leaf, Hudson Moon and Diamond Dust nuclear tests which were all conducted at the Nevada Test Site during May 1970. In addition, the veteran submitted newspaper articles, entitled "NTS Contaminated, Plutonium of 250 Square Miles", dated August 21, 1970, and undated articles, entitled, "AEC Ignored Advice of Five Scientist" and "600 Leave After Atomic Fallout." Finally, he submitted a copy of research index results from the National Library of Medicine's website for the keyword search of atomic radiation and nerve damage. While this evidence is new because it was not previously submitted to the RO, the Board also finds that this evidence is not material. The veteran's claim for entitlement to service connection for peripheral neuropathy was previously denied because VA found no evidence of inservice exposure to ionizing radiation. While this evidence reveals the veteran's participation in nuclear testing in May 1970, it does not confirm any actual inservice exposure to ionizing radiation. More specifically, this evidence does not serve to invalidate or effectively challenge the findings listed on the veteran's Record of Occupational Exposure to Ionizing Radiation, Form DD 1141, which listed the veteran's dose exposure as "0" from July 1970 to May 1971. Accordingly, this evidence does not raise a reasonable possibility of substantiating the veteran's claim for entitlement to service connection for peripheral neuropathy of the lower extremities, due to inservice exposure to ionizing radiation. In support of his claim, the veteran has submitted an award letter from the Social Security Administration, dated in November 2004, indicating that he was awarded monthly disability benefits beginning in July 2004. While this evidence is new, it is not material. Specifically, this evidence does not establish the veteran's inservice exposure to ionizing radiation. In reaching its decision herein, the Board notes that the veteran has provided additional statements in support of his claim. His contention, however, essentially repeats his initial allegations herein, and thus is not considered new evidence. Finally, the Board notes that the veteran has submitted some items which were previously considered by the RO at the time of its January 2004 decision. Specifically, the veteran submitted a medical treatment report, dated in April 2001, from N. Schlageter, M.D.; a listing of US Nuclear Tests for the period from April 21, 1970 to February 17, 1972; a Defense Nuclear Agency Certificate of Achievement; and a certificate noting his participation in the Diagonal Line nuclear test which was conducted at the Nevada Test Site during May 1970. Each of these items were before the RO at the time of its January 2004 decision, and are therefore not new evidence. As new and material evidence to reopen a finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been received, the claim for entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage), to include as due to inservice exposure to ionizing radiation, is not reopened. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs