Citation Nr: 1014643 Decision Date: 04/16/10 Archive Date: 04/29/10 DOCKET NO. 04-10 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for coronary artery disease (CAD), originally claimed as heart problems. 2. Entitlement to service connection for liver damage secondary to service-connected hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1953 to October 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In January 2008, the Board remanded the matters on appeal for further development. In February 2008, VA received a response from the Social Security Administration (SSA) indicating that they were unable to locate the Veteran's records and that further efforts would be futile. In February and November 2009, VA provided the Veteran with proper notice. Given the foregoing, the Board finds that VA has substantially complied with the January 2008 remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The Board notes the receipt of a March 1992 private medical record from A.M.R. and a January 1998 letter from the Veteran received after the issuance of the January 2010 supplemental statement of the case (SSOC). However, both documents are duplicative of evidence already in the record. Accordingly, the Board can proceed with consideration of the matters on appeal. 38 C.F.R. § 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The August 1994 decision which denied entitlement to service connection for heart disease is final. 3. The evidence received since the August 1994 RO decision, by itself or in conjunction with previously considered evidence, does not relate to an unsubstantiated fact necessary to substantiate the claim for service connection for CAD. 4. There is no current diagnosis of a liver disorder. CONCLUSIONS OF LAW 1. The August 1994 RO decision denying the claim for service connection for heart disease is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2009); 38 C.F.R. § 20.1103. 2. Evidence received after the August 1994 RO decision is not new and material, and the claim for service connection for CAD is denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2009). 3. The criteria to establish service connection for a liver condition have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, 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. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. To provide adequate notice with regard to a claim to reopen, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In November 2008, the RO provided the Veteran with a compliant notice letter for the matters of a liver condition as secondary to service-connected hepatitis C and whether new and material evidence had been submitted to reopen a claim for CAD, claimed a heart problems. However, this letter was returned to the Board as undeliverable. In February 2009, the letter was resent. In that letter, the RO provided the Veteran with a definition of new and material evidence as well as the criteria necessary to establish service connection on a direct and secondary basis. The Veteran was informed that he needed to submit new and material evidence related to this fact in order to raise a reasonable possibility of substantiating his claim for CAD that was not simply repetitive or cumulative of the evidence on record when his claim was previously denied. Although the February 2009 letter appears to contain the incorrect date of the last final denial, the RO provided the Veteran with a November 2009 letter properly identifying the date of the last final denial for heart problems, August 1994, as well as the reason for the denial, no evidence of a heart condition during service. The letter also contained notice that addresses the relevant rating criteria and effective date provisions. Although the notice was provided after the initial adjudication of the Veteran's claim in July 2003, the claims were subsequently readjudicated in a January 2010 supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA. VA has also satisfied its duty to assist the Veteran at every stage of this case with regard to the claims for CAD and a liver condition. All available service treatment records as well as all identified VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. As noted in the introduction, in February 2008, the SSA responded that they were unable to locate the Veteran's records and that further efforts would be futile. Accordingly, VA has no further duty to attempt to obtain these records. 38 C.F.R. § 3.159(c)(1). The Veteran has undergone at least three VA examinations dated in June 2001, November 2002, and April 2004, wherein his contention that he has a liver condition secondary to his service-connected hepatitis C was discussed. As noted below, the Board finds that the VA examinations obtained in this case are adequate upon which to evaluate the Veteran's claim. They are predicated on a reading of the service and post- service medical records in the Veteran's claims file and considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and the statements of the Veteran, and provides a complete rationale for the opinions stated, relying on the results of medical testing. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of a liver condition has been met. 38 C.F.R. § 3.159(c)(4). Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOCs, which informed them of the laws and regulations relevant to his claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. LAW AND ANALYSIS 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for coronary artery disease (CAD), originally claimed as heart problems. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). See also Duran v. Brown, 7 Vet. App. 216, 220 (1994). An August 1994 RO decision denied service connection for heart disease because there was no evidence the condition existed during military service. In particular, the decision noted that the service treatment records reflected transient chest pains and heart disease was ruled out. Thirty years later, the Veteran was found to have heart disease. The Veteran was notified of the denial that same month. Although he filed a notice of disagreement (NOD) in September 1994 and a statement of the case (SOC) was issued in September 1994, the Veteran failed to perfect an appeal. Because the Veteran did not perfect an appeal on that decision, it is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.202, 20.1103. The Veteran, however, now seeks to reopen his claim. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). With these considerations, the Board has reviewed the record, with particular attention to the additional evidence received since the final August 1994 rating decision. After reviewing the record, the Board finds that some of the additional evidence received since the final rating decision although new, is not material within the meaning of 38 C.F.R. § 3.156(a). In this regard, the evidence associated with the Veteran's claims file subsequent to the August 1994 RO decision relevant to the claim includes VA and private treatment records as well as various statements of the Veteran. As noted, the Veteran's claim was previously denied because there was no evidence that heart disease existed during service, nor was there any evidence of an association between current heart disease and the Veteran's service. Beginning with the medical evidence associated with the claims file after the last final decision, the Board notes that although these records are new, they are not material. None of the medical evidence indicates that the Veteran's heart disease either began during or is otherwise etiologically related to his military service. As such, the medical evidence is not probative and, consequently, does not constitute new and material evidence. With respect to the Veteran's statements that his heart disease is related to his service, he, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 294 (1992). Thus, the Board finds that his statements and arguments are not new and material. In sum, the Board concludes that no evidence has been received since the August 1994 RO decision, which relates either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Specifically, there is still no evidence that any heart disease began during or is otherwise etiologically related to military service. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim for service connection for CAD. 2. Entitlement to service connection for liver damage secondary to service-connected hepatitis C. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board notes that the provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. However, it does not matter which version of 38 C.F.R. § 3.310 the Board applies because the claim is being denied on the basis of no current disability, rendering the provisions of 38 C.F.R. § 3.310 in applicable. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the veteran has the disability for which benefits are being claimed. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Veteran contends that he has a liver condition secondary to his service-connected hepatitis C. However, the evidence of record does not reflect any current liver condition. In this regard, a June 2001 VA examination, wherein the Veteran's claims file was reviewed, indicated that the Veteran did not have any residuals of hepatitis C. There was a positive test for the hepatitis C antibody. Two tests for hepatitis C RNA were both negative, which showed that the Veteran did not have chronic hepatitis C. Rather, the Veteran has had a past infection with hepatitis C, but the infection was cleared. A November 2001 VA echogram found the Veteran's liver normal in size. On repeat VA examination in November 2002, the Veteran's hepatitis C was again found to be resolved. It was noted that the Veteran had an acute episode of hepatitis after receiving blood transfusions during his coronary artery bypass grafting in 1990. However, his current liver function tests were normal and his hepatitis C RNA test was negative, showing that his hepatitis C has resolved. The examiner could find no sequel. Most recently in April 2004 during a claim for aid and attendance benefits, an examiner again reviewed the claims file and performed testing, which found that hepatitis C had resolved. No liver damage was identified and the liver function tests were well within normal limits. The Board affords great probative weight to the results of the aforementioned VA examinations, as they were based on a thorough review of the Veteran's claims file. Further, the examiner's conclusions were supported by the results of the liver function and C RNA testing. Accordingly, the Board finds these examinations very persuasive. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In sum, the most probative evidence of record indicates that the Veteran does not have a current liver disorder. Service connection requires evidence that establishes that the veteran currently has the claimed disability. See Degmetich, 104 F. 3d at 1332; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran might sincerely believe that he has a liver condition, he, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, without a current diagnosis of a liver condition, service connection must be denied. ORDER New and material evidence having not been submitted, the claim for entitlement to service connection for CAD, originally claimed as heart problems, is not reopened and is denied. Entitlement to service connection for liver damage secondary to service-connected hepatitis C is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs