Citation Nr: 1002178 Decision Date: 01/13/10 Archive Date: 01/22/10 DOCKET NO. 05-03 703 ) DATE ) ) Received on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder. 3. Entitlement to service connection for residuals of heat stroke. REPRESENTATION Appellant represented by: Thomas N. Sheridan, Attorney ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The Veteran had active service from May 1957 to October 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision issued in May 2004 by the St. Petersburg, Florida RO (St. Petersburg RO. Subsequently, the New York, New York RO (New York RO) assumed jurisdiction. The Board remanded this case in September 2007 for further development. As final preliminary matter, the Board notes that a Travel Board hearing was scheduled for January 11, 2007; but the appellant failed to appear; the hearing notice was not returned as undeliverable, and no further communication was received from the appellant or his attorney regarding the hearing request or his failure to appear. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2006). Accordingly, the Board will proceed with its review of this case on the basis of the current record. FINDINGS OF FACT 1. In an unappealed May 1960 rating decision, service connection for a back disorder was denied. 2. Evidence added to the record since the May 1960 rating decision is mostly cumulative and redundant or does not, when considered with previous evidence of record, raise a reasonable possibility of substantiating the claim. 3. In a March 2000 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder. 4. Evidence added to the record since the March 2000 Board decision is mostly cumulative and redundant or does not, when considered with previous evidence of record, raise a reasonable possibility of substantiating the claim. 5. There is no competent medical evidence of a causal relationship between residuals of heat stroke and service. CONCLUSIONS OF LAW 1. The May 1960 rating decision, denying service connection for a back disorder, is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.201, 20.1103 (2009). 2. New and material evidence has not been received to reopen a claim for service connection for a back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. The March 2000 Board decision, denying service connection for an acquired psychiatric disorder, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2009). 4. New and material evidence has not been received to reopen a claim of service connection for a psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 5. The criteria for service connection for claimed residuals of heat stroke are not met. 38 U.S.C.A. §§ 105, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126(West 2002 & Supp. 2009); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). The VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. The Board notes that a "fourth element" of the notice requirement, requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim, was recently removed from the language of 38 C.F.R. § 3.159(b)(1); see 73 Fed. Reg. 23,353-356 (April 30, 2008). Specific to requests to reopen a previously-denied claim for service connection, VA must provide notice that describes the basis for the previous denial, as well as the reopening criteria and the criteria for establishing the underlying claim for service connection found to be unsubstantiated in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, prior to the initial adjudication of the claims in the April 2004 rating decision, VCAA notice was provided in February 2004. An additional VCAA letter was sent in September 2007. The VCAA letters informed the Veteran of the types of information and evidence necessary to substantiate his claims, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. In particular, the September 2007 informed the Veteran of what would constitute both "new" and "material" evidence to reopen his previously-denied claims for service connection for psychiatric and back disorders. Although this letter inadvertently identified a January 1958, not a May 1960 rating decision, as the last final denial with regard to the Veteran's claim for service connection for a back disorder, it correctly identified the reason for the most recent denial and, therefore, the Board finds that such error was harmless and did not prejudice the Veteran. The September 2007 letter also provide the Veteran with notice pertaining to the downstream disability rating and effective date elements of his claims consistent with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Subsequently, the Veteran's claim was readjudicated in supplemental statements of the case issued in September and December 2008. Thus, any VCAA notice error in this case is deemed harmless and does not preclude appellate consideration of the claimant's claims. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes, in part, service treatment records, service personnel records, private medical records, VA outpatient treatment and examination reports, previous testimony, and statement submitted by the Veteran or his attorney, on his behalf. In January 2008, a VA examiner reviewed the claims file and rendered an opinion on whether the Veteran had residuals of heat stroke claimed to have been sustained in service. With respect to the issues concerning new and material evidence, where there is no showing of a disability in service or a link between the Veteran's current disability and his active service, a VA medical examination is not necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the statutory duty to assist the Veteran does not arise if the Veteran has not presented new and material evidence to reopen his claim. Anderson v. Brown, 9 Vet. App. 542, 546 (1996). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his attorney have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2009). II. Petition to Reopen In a May 1960 rating decision, service connection for a back disorder was denied, noting that findings with regard to the Veteran's back shown on an April 1960 VA examination were unrelated to acute episode in service when the Veteran was treated to a back injury after a fall and were due to congenital sacrilization of the transverse process of L5. The Veteran was provided notice of the decision the same month, but did not timely appeal of that decision; therefore it is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Similarly, in a March 2000 decision, the Board denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, finding that the currently manifested acquired psychiatric disorders were not related to disease or injury or other incidents of service. The Veteran was provided notice of the decision, but did not timely appeal that decision; therefore it is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Here, the Veteran's petition to reopen his previously-denied claims for service connection for back and psychiatric disorders was received in September 2003. Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial was the April 2004 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In the present case, this means that the Board must look at all the evidence received since the May 1960 rating decision and the March 2000 Board decision, which were the last final adjudication that disallowed the claims, and must consider the additional evidence in the context of all the evidence of record. The evidence added to the record since the May 1960 rating decision and March 2000 Board decision and the May 1960 rating decision includes additional VA treatment and examination reports, private treatment records, and written statements submitted by the Veteran or on his behalf. The VA treatment records show that the Veteran received treatment for psychiatric problems, including a gambling disorder. (See VA treatment records dated in January 1993, January 1995, June 1999, and October 2001, and from October 2003 to July 2004). In a November 1990 statement from the Veteran's private physician, Dr. L. E., indicated that the Veteran was disabled because of anxiety, depression, and low back pain. A March 1991 x-ray of the back revealed partial sacralization of the left transverse process of L5 and no other joint pathology. In a November 1991 statement, Dr. H. B. reflects that the Veteran injured his upper back when someone opened a car door while he was riding a bicycle. He was diagnosed with degenerative disc disease of lumbar spine and cervical spine. VA treatment records dated from October 2003 to July 2004 reflect that the Veteran was treated for a back disorder. July 2004 x-rays revealed degenerative disc disease of C5-C6 and C6-7 with bilateral neural foraminal narrowing. As explained, the present inquiry is whether this additional evidence raises a reasonable possibility of substantiating the previously-denied claims, namely, whether such evidence provides evidence of a chronic back disability linked to an in-service back injury and/or shows that the Veteran's preexisting psychiatric disorder was aggravated beyond the natural progression in service. As some of the additional evidence was not of record at the time of the May 1960 and March 2000 denials, it is "new." However, it is not "material" because it still does not reveal a chronic back disability linked to an in-service back injury and/or show that the Veteran's preexisting psychiatric disorder was aggravated by his short period of service. See generally Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994). With respect to the Veteran's own statements added to the file in support of his claims, they are essentially reiterations of similar assertions before the RO in 1960 and before the Board in 2000 and thus are cumulative in nature and, thus, are not material for purposes of reopening the claims. It is now well-established that, while a layperson is competent to report psychiatric symptoms experienced at any time, a layperson without medical training, such as the Veteran, is not qualified to diagnose or offer a medical etiology opinion regarding a claimed disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Indeed, in Moray v. Brown, 5 Vet. App. 211 (1993), the United States Court of Appeals for Veterans Claims (Court) noted that lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court noted "[l]ay assertions of medical causation, or in this case, of aggravation of a preexisting disease, cannot suffice to reopen a claim under 38 U.S.C. § 5108." Thus, the evidence presented since the last final denials in May 1960 and March 2000 for back and psychiatric disorders does not raise a reasonable possibility of substantiating the claims; therefore, the Board finds that the additional evidence is not new and material. Accordingly, the claims of entitlement to service connection for back and psychiatric disorders are not reopened. III. Service Connection for Residuals of Heat Stroke Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's service treatment records reveal that the Veteran was admitted with heat exhaustion on June 5, 1957 while sitting in the field, listening to lectures. Post-service treatment records are devoid of any complaints, or findings, or treatment for residuals of a heat stroke. In this regard, the Board acknowledges that, in a November 1991 statement, Dr. H. B. indicated that the Veteran's heat stroke was related to his current psychological problems. However, the Board accords little probative value to this opinion as it appears to be based solely on the Veteran's self-reported history. Any statements of the Veteran that he had sustained the claimed disability as a result of an alleged in-service injury (for example, heat stroke) are not transformed into "competent medical evidence" merely because the transcriber of the statements happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). By contrast, the Board finds the opinion rendered by the January 2008 VA examination more probative. After reviewing the service treatment records, this VA examiner noted that the Veteran was treated for heat exhaustion in June 1957. At the time of admission, his temperature was 99 degrees and his heart rate was 80. He was oriented and coherent with no evidence of altered mental status. The VA examiner further noted that there was no evidence of a heat stroke in the Veteran's service treatment records. The Veteran fully recovered the next day was returned to duty the following day. The January 2008 VA examiner added that there was no documentation of any residuals from the above exposure to heat and concluded that there were no residuals from the in- service heat prostration/exhaustion. Thus, the Board finds that this medical opinion-which weighs against the claim-is entitled to more weight. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Thus, the Board concludes that the preponderance of the evidence is against service connection for residuals of heat stroke. Although the Veteran's service treatment records show treatment for a single incident of heat exhaustion, the Veteran's post-service treatment records are devoid of any complaints, or findings, related to heat stroke other than Dr. H. B.'s statement. There were also no complaints or findings of residuals of a heat stroke in the years immediately following service, including at the time of VA examinations performed in December 1957, March 1958, May 1958, and April 1960. Further, the January 2008 VA examiner found that the there was no evidence of heat stroke in service and there were no residuals from the in-service heat prostration/exhaustion. The Board points out that passage of so many years between discharge from active service and the lack of objective documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition to the medical evidence, the Board has considered the Veteran's belief that he currently has residuals of heat stroke related to his period of service. Matters of diagnosis and etiology are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a lay person, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993). Moreover, there has been no competent medical evidence submitted relating any current residuals of claimed heat stroke to the Veteran's period of service. There is only evidence to the contrary. Hence, the lay assertions in this regard have no probative value. Although the Board is sympathetic to the Veteran's assertions, the preponderance of the evidence is against the claim and there is no doubt to be resolved. As the preponderance of the evidence is against the claim for service connection, 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, 50 (1990). ORDER As new and material evidence sufficient to reopen a claim of service connection for a psychiatric disorder has not been received, the appeal to reopen is denied. As new and material evidence sufficient to reopen a claim of service connection for a back disorder has not been received, the appeal to reopen is denied. Service connection for residuals of heat stroke is denied. ____________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs