Citation Nr: 1009986 Decision Date: 03/16/10 Archive Date: 03/24/10 DOCKET NO. 04-29 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a tumor of the olfactory groove meningioma on the left (brain tumor). 2. Entitlement to service connection for a psychiatric disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active military duty from November 1975 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In November 2004, the Veteran testified during a video conference hearing before the undersigned. A copy of the hearing transcript is associated with the claims folder and has been reviewed. The issue of whether new and material evidence has been received to reopen a claim for service connection for a brain tumor was previously before the Board in September 2006 and February 2009. The required development having been completed, this issue is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, in the September 2006 Board decision, entitlement to service connection for a psychiatric disability was denied. The Veteran appealed that determination to the United Stated Court of Appeals for Veterans Claims (Court) and in a November 2008 Memorandum Decision the Court vacated the September 2006 decision as to the issue of service connection for a psychiatric disability and remanded the matter to the Board for further appellate consideration. FINDINGS OF FACT 1. An application to reopen a claim for service connection for a brain tumor was denied by a March 1998 rating decision which was not appealed. 2. Evidence received since the March 1998 rating decision pertinent to the claim for service connection for a brain tumor does not bear directly and substantially on the specific matter under consideration, and is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. A psychiatric disability was not exhibited during active service, and a preponderance of the evidence is against a finding of a psychiatric disability related to active military service or events therein. CONCLUSIONS OF LAW 1. The March 1998 rating decision, which denied an application to reopen a claim for service connection for a brain tumor, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1997). 2. A psychiatric disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (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), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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). Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). To the extent possible, VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim, such as in a statement of the case (SOC) or a supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In regard to the issue of whether new and material evidence has been received to reopen a claim for service connection for a brain tumor, the Court has held that, where the appellant files a claim to reopen a previously denied service connection issue, the appellant must be supplied with notice of the evidence and information necessary to reopen the claim for service connection, the evidence and information necessary to establish entitlement to the underlying claim, and a description of the exact reasons for the previous denial of the claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1, 9-11 (2006). The Court explained that, in notifying the claimant of what evidence would be considered new and material, VA should look at the basis for the denial in the prior decision and identify the evidence that would substantiate the element(s) of a service connection claim found lacking in the previous denial. Id. In this case, the RO provided the Veteran VCAA notice about her claim by letters dated in October 2006 and March 2009. The content of the VCAA notice letters sent to the Veteran reflect compliance with the requirements of the law as found by the Court in Pelegrini, supra; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Kent, supra. In the letters, collectively, the VA acknowledged the Veteran's claim, notified her of the evidence needed to substantiate her claim, identified the type of evidence that would best do so, informed her of the VCAA and VA's duty to assist. In addition, the VA defined "new" and "material" evidence and identified the bases of the RO's last denial of the Veteran's claim to reopen. VA also identified the evidence it was responsible for securing. VA noted that it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided she identified the source(s) thereof. VA also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. The Veteran also received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Here, compliant notice was accomplished after the initial denial of the claim to reopen; however, the RO/AMC subsequently readjudicated the claim based on all the evidence in October 2009. See Prickett, supra. Accordingly, the Veteran was not precluded from participating effectively in the processing of her claim and the late notice did not affect the essential fairness of the decision. The otherwise defective notice has resulted in no prejudice to the Veteran. With regard to the issue of service connection for a psychiatric disability, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2001 that fully addressed all notice elements regarding the Veteran's claim of entitlement to service connection for a psychiatric disability and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim of entitlement to service connection and of the Veteran's and VA's respective duties for obtaining evidence. In Dingess, supra, the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's claim for service connection, such error was harmless given that the claim of entitlement to service connection for a psychiatric disability is being denied, and hence no rating or effective date will be assigned with respect to the claimed disability. VA has a duty to assist the Veteran in the development of her claims. This duty includes assisting the Veteran in the procurement of service and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records and the enlistment and separation medical examinations and history report for enlistment into the service. VA treatment records have been associated with the claims folder. The Veteran submitted private treatment records of Southwest Mississippi Regional Medical Center (SMRMC), dated June 1997 to March 2000; Louisiana State University Medical Center, dated July 1997 to December 1998; Beacham Memorial Hospital, dated in September 2001; Anazia Medical Clinic (including the records of Dr. V.A.), dated November 1998 to July 2002; and the Medical Center of Louisiana at New Orleans, dated in August 1997, and was provided an opportunity to set forth her contentions during the video conference hearing before the undersigned Veterans Law Judge. The Veteran has not been afforded a VA medical examination in regard to her claimed psychiatric disability. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has not been diagnosed with a psychiatric disability. There is no indication in the Veteran's service treatment records of any psychiatric disability and since service connection for residuals of a brain tumor is not being granted, no basis to relate psychiatric disability to an existing service-connected disability. Consequently, the Veteran has not presented evidence indicating a nexus between a current psychiatric disability and service. Thus, there exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that have not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of her claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra. II. New and Material Evidence By a March 1998 rating decision, the RO, in pertinent part, denied service connection for a brain tumor. At that time, it was determined that the Veteran's tumor was not incurred or aggravated in service. The Veteran did not appeal that determination and it became final. The service medical examination reports of record at the time of the March 1998 final denial show there were no complaints of, treatment for or a diagnosis of a brain tumor or any associated symptoms during service. The March 1977 separation examination reveals no abnormalities of the head, face, neck, scalp, sinuses, or eyes. Post-service private medical consultation and operative reports were also of record at the time of the final denial in March 1998. In a July 1997 progress note of the Veteran's private physician, Dr. MEC, it was noted that the Veteran reported that she hit her head at work as she elevated her head when she was under an open file drawer. She received emergency room treatment and a computed tomography (CT) scan showed a "tumor." In an August 1997 consultation report by private physicians, Drs. MEC and DN the Veteran's chief complaint was that she had a "tumor in the skull." She explained that she was well until June 1997 when she fell and hit her head and sustained a relatively mild concussion and became somewhat disoriented and dizzy with nausea and vomiting. She was given a CT scan which revealed a mass in the olfactory area. Days after the consultation in August 1997 the Veteran underwent an operation to remove a left olfactory grove meningioma. Records of follow-up treatment in August, September and October 1997 are also associated with the claims folder prior to the March 1998 rating decision. In a January 1998 written statement by the Veteran she noted, with respect to her brain tumor, that she had constant pain while in the military and was told that it was sinusitis. She noted further that one military doctor told her that she did "have a tumor," but because it was small, she was told "not to let it worry [her] and not to let anyone touch it." Consequently, in March 1998, the RO concluded that evidence of record did not establish that a brain tumor was incurred in or aggravated by military service. As such, the RO denied service connection for a brain tumor. Because she did not initiate an appeal of the March 1998 decision, that determination became final. In June 2001 the Veteran sought to reopen the claim for service connection for a brain tumor. A Veteran may reopen a previously and finally denied claim by submitting new and material evidence. 38 C.F.R. § 3.156(a). The Board notes that the legal standard of what constitutes "new and material" evidence was amended and applied prospectively to claims filed on or after August 29, 2001. See 38 C.F.R. § 3.156(a). Since the Veteran's request to reopen her claim for service connection for a brain tumor was June 2001, the amended version of the regulations is inapplicable in this instance. Under the pre-amended version of the regulations, new and material evidence is defined as evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1997). In deciding the issue of whether newly received evidence is "new and material," the credibility of the evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 512, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Evidence pertinent to the Veteran's application to reopen a claim for service connection for a brain tumor received since the final denial in March 1998 consists of a written statement from the Veteran dated in November 2001 wherein she indicated that she thinks she had a brain tumor before entering the Army because she had severe headaches and did not tell the sergeant for fear she would be left behind. A June 1997 CT head scan, showing no abnormalities was submitted after the March 1998 final determination. Progress notes dated from January to August 1998, for follow-up treatment with Dr. CEM have been associated with the claims folder since the March 1998 final rating decision. In the August 1998 note, Dr. CEM commented that "Ordinarily [he] would think it would be time for follow[-]up MR scan, but she had a follow[-]up CT scan six months ago that showed no evidence of tumor recurrence." Also associated with the claims folder since the March 1998 rating decision are treatment records from the Veteran's private physician, Dr. VA, dated from 1998 to 2002, for treatment for headaches, sinusitis and head swelling, among other things. In a December 1998 letter from Dr. CEM to the "A" Medical Clinic (AMC), he noted that he removed an olfactory groove meningioma from the Veteran. He also noted that he believed that the Veteran's dizziness and passing out are related to her low blood. He further noted that there is no evidence of a tumor recurrence. Laboratory and radiological reports dated in 1997 were also associated with the claims folder since the March 1998 final rating decision. Also of record since March 1998 is a VA outpatient treatment report dated October 2002, which reveals a diagnosis of status post meningioma. In December 2003 the RO received a letter from the Veteran's private doctor, Dr. VA who noted that the Veteran had a remote history of inferior frontal lobe brain lesion that was surgically removed in 1997 due to recurrent, chronic, incapacitating headaches. He further noted that "As per patient, she has had recurrent headaches as far back as in late 1970's until late 1990's when the final diagnosis was made. The result being, surgical correction." VA Medical Center (MC) outpatient neurology consult notes dated in July 2005 have also been associated with the claims folder since the March 1998 final rating decision. The Board finds that new and material evidence has not been received since the last final denial in March 1998. While some evidence is new, because it was not previously of record, it is not material to the claim for service connection for a brain tumor. The new evidence provides no competent evidence that a brain tumor had its onset during service or was aggravated therein. Therefore the new evidence does not bear directly and substantially on the specific matter under consideration, and is not so significant that it must be considered in order to fairly decide the merits of the claim. Dr. VA recorded that the Veteran reported that she had a brain tumor removed due to recurrent, chronic, and incapacitating headaches and that such headaches go as far back as the late 1970's until the late 1990's when the final diagnosis was made. Dr. VA's transcription of the Veteran's history as reported by the Veteran and unenhanced by any additional comments is not competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As such, it is of little probative value when considering whether to reopen the Veteran's claim. Moreover, the Veteran's reported headaches since service is cumulative to her previous descriptions (See January 1997 Statement in Support of Claim) and does not add anything new to the record. The Veteran's statement that she thinks that she had a brain tumor in service because she experienced severe headaches lacks probative value when considering causation. Where the determinative issue is one of diagnosis or medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). As a layperson without any medical training and expertise, the Veteran is simply not qualified to render a medical opinion in this regard. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu, supra. Consequently, the Board concludes that the additional evidence received since the prior final denial of service connection for a brain tumor is not new and material, as contemplated by the pertinent law and regulations, and cannot serve as a basis to reopen the Veteran's claim for service connection for such a disorder. The preponderance of the evidence is against the Veteran's claim for reopening a claim for service connection for a brain tumor. The benefit-of-the-doubt rule does not apply, and the benefit sought on appeal must be denied. 38 U.S.C.A. § 5107(b). III. Service Connection Claim In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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, supra. at 54. In June 2001 the Veteran filed a claim for entitlement to service connection for depression. She contends that she had severe headache in service but was afraid to tell her sergeant because she did not want to be left behind and that made her "depressed." She asserted that she has been depressed since her first time on the rifle range, where she failed and had to go back again. She stated that she felt that she was going to be left behind and she never got over it. Service treatment records do not mention that the Veteran complained of or was treated for depression or any symptoms related thereto. The Veteran's March 1977 separation examination report reveals no psychiatric abnormalities on clinical evaluation. Specifically, there were no complaints, treatment or diagnosis of depression. Post-service VA treatment records dated from 1997 to 2007 are negative for treatment or diagnosis of depression or any psychiatric disability. The records do however show that between 2001 and 2007 the Veteran had a number of VA major depression screenings performed. Of the approximately thirteen screenings, three resulted in a positive major depression screen, with the remaining resulting in a negative major depression screen. However, the claims folder reflects no earlier or subsequent reports of depression, and there is no indication of a diagnosis of a psychiatric disability. In April 2006 the Veteran had a posttraumatic stress disorder (PTSD) screen. At that time, the Veteran was found to have a negative PTSD screen. Thus, without a current diagnosis of depression or other psychiatric disability service connection cannot be granted. The Board notes that a service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau, supra; Brammer, supra. Assuming arguendo, without conceding, that the various screenings reflect the presence of a chronic psychiatric disability, however, without competent evidence showing that the disability is related to service, there is no basis to grant service connection. The Veteran testified at her video conference hearing that her psychiatric disability is related to a brain tumor. Hearing Transcript (Tr.), p. 3. She stated that her doctor said that her "psychiatric problems" are probably because she had a brain tumor. Tr. p. 5. Hearsay medical evidence, as transmitted by a layperson, is of limited probative value. The connection between what a physician said and the layperson's account of what was purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995). As to the assertion that service connection is warranted because the Veteran's psychiatric disability is secondary to a brain tumor, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Here, the Veteran is not service-connected for a brain tumor; therefore a grant of service connection for a psychiatric disability as secondary to a brain tumor is not for application. In a Statement in Support of Claim dated December 2001, the Veteran asserted that she has been depressed since her first time on the rifle range during service. While the Veteran is competent to describe her mental or emotional state in service, the Board does not find this statement credible evidence of continuous depressive symptoms since service. Besides not being supported by any contemporaneous clinical records of depressive symptoms, the Veteran filed a claim for compensation in 1997 and made no mention of depression. She was aware of the compensation program and it seems likely that she would have filed a claim at that time if her problem persisted. There was no suggestion of longstanding depression in any of the many clinical records and her own statements have suggested that her emotional state was affected by post service events, i.e., the diagnosis of brain tumor. The Board does not find convincing evidence that depression existed from service. While the Board acknowledges the Veteran's belief that she has a psychiatric disability, and that it is related to service, as a layperson without any medical training and expertise, she is simply not qualified to render a medical opinion in this regard. See Grottveit, supra; Espiritu, supra (laypersons are not competent to render medical opinions). The Veteran's assertions of medical causation alone are not probative because laypersons are not competent to offer medical opinions. Moray v. Brown, 5 Vet. App. 211 (1993). As noted above, incumbent on a grant of service connection for a disability is a finding that the Veteran has the claimed disability and that it is related to service. As no competent evidence of record shows that the Veteran currently has a chronic disability or was treated for a psychiatric disability during service, the Board finds that the preponderance of the evidence of record weighs against the grant of service connection for a psychiatric disability. The Board declines to obtain a medical nexus opinion with respect to the Veteran's claim of service connection for psychiatric disability. Hence, the standards outlined in the Court's decision in McLendon, supra have not been met, which requires evidence of an event, injury, or disease to have occurred in service. Instead, there is only the Veteran's unsubstantiated allegation that her claimed psychiatric disability is related to service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Thus, in view of the absence of abnormal findings in service, the negative examination performed at separation from service, and the first suggestion of pertinent disability many years after service, relating a psychiatric disability to service would be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (2009). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER New and material evidence has not been received to reopen a previously denied claim for a brain tumor and the claim is denied. Service connection for a psychiatric disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs