Citation Nr: 1032856 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 06-30 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a functional heart murmur. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for chronic obstructive pulmonary disease. 4. Entitlement to a compensable evaluation for fibrocystic breast disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty between March 1990 and March 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was certified to the Board by the Columbia, South Carolina RO. The Veteran was scheduled for a Decision Review Officer Hearing in October 2006. In September 2006, she canceled her hearing. Hence, her hearing request is considered withdrawn. The issue of entitlement to a compensable rating for fibrocystic breast disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence submitted since the January 1995 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a heart murmur. 2. There is no competent evidence of diabetes mellitus in service or for many years after service. 3. There is no evidence of a current diagnosis of chronic obstructive pulmonary disease. CONCLUSIONS OF LAW 1. A January 1995 rating decision is final. New and material evidence to reopen a claim of entitlement to service connection for a functional heart murmur has not been received. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2009). 2. Diabetes mellitus was not incurred or aggravated during service, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 3. Chronic obstructive pulmonary disease was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in March and April 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. Although the RO did not provide notice regarding how VA decides effective dates and how disability ratings are determined, this question is rendered moot because of the denial of the underlying claims. The Board finds that the notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to this matter have been requested or obtained. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate the claim would not cause any prejudice to the Veteran. The Board acknowledges that the Veteran has not been afforded a VA examination to determine the nature and etiology of her claimed chronic obstructive pulmonary disease or diabetes mellitus. However, a VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the requirement to examine the Veteran is not triggered as the evidence of record does not meet these initial evidentiary thresholds. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. New and Material Evidence- Laws and Regulations Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New evidence means existing evidence not previously submitted to agency decision makers. 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. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2009). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See generally Elkins v. West, 12 Vet. App. 209 (1999). The United States Court of Appeals for Veterans Claims has held that, in determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). Analysis The Veteran was originally denied entitlement to service connection for a functional heart murmur in January 1995. The RO, in its denial of service connection, stated that the Veteran's functional heart murmur was a congenital or developmental defect which was not subject to service connection, and that no heart murmur was found by the examiner in December 1994. After the her January 1995 denial, the Veteran submitted VA medical records dated between February 2001 and November 2006, as well as statements in support of her claim in which she repeatedly stated that her heart murmur was "discovered" in service and should therefore be service connected. The Veteran's assertions regarding the cause of her heart murmur are neither new nor material. The Veteran previously asserted that her congenital defect began in service. Thus, her later statements containing the same assertion are redundant of the evidence of record in January 1995. 38 C.F.R. § 3.156 (a) While the VA medical records submitted since the January 1995 decision are new, these records are not material. The Veteran's claim was initially denied primarily because her condition was a congenital defect and therefore could not be service connected. 38 C.F.R. § 3.303(c). At that time, the RO further noted that no heart murmur was found on examination in December 1994. As stated above, 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. Thus, in this case the evidence must, inter alia, demonstrate a link between an acquired heart murmur and service. Again, it bears repeating that regardless when they are "discovered," a congenital or developmental defect is not a disease or an injury which may be service connected Id. In this case, the new evidence does not contain the required findings to reopen the claim. The Veteran's claimed heart murmur has not been diagnosed since service and the evidence contains no competent medical evidence whatsoever that connects an acquired heart murmur to her service. The evidence submitted after the Veteran's January 1995 rating decision does not provide a reasonable possibility of substantiating her claim. The record contains neither evidence showing that the Veteran has an acquired heart murmur that is linked to service, nor evidence of a current disorder. Hence, the claim to reopen must be denied. As the Veteran has not carried her initial burden of submitting new and material evidence, the benefit-of-the- doubt rule is not applicable to her petition to reopen. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection-Laws and Regulations Establishing service connection generally requires (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 present disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Diabetes mellitus if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The Secretary shall consider all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Diabetes Mellitus Factual Background and Analysis The Veteran contends that she had low blood sugar in March 1990 when she began active service, and that consequently she should be service connected for diabetes mellitus. See March 2005 Veteran's Statement. Significantly, her service treatment records contain no evidence of diagnosis of or treatment for diabetes mellitus or low blood sugar. At her January 1994 separation examination a urinalysis study was negative for evidence of sugar, and her endocrine system was clinically evaluated as normal. Treatment records show that the Veteran was first diagnosed with diabetes in 1998, four years after her discharge from service. The competent medical evidence fails to show an in-service incurrence of diabetes or incurrence of compensably disabling diabetes within a year of discharge from active duty. There is no evidence linking the Veteran's present diabetes mellitus to her service. As a lay person, the Veteran is competent to report on that which she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) it was held that a lay person can speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of etiology goes beyond a simple and immediately observable cause-and-effect relationship, and as such, she is not competent to render an opinion regarding the cause of her diabetes. In this case, as the evidence fails to reveal the in-service incurrence of diabetes mellitus or competent medical evidence relating diabetes to service, the claim must fail. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim. Chronic Obstructive Pulmonary Disease Factual Background and Analysis The Board initially notes that service connection for chronic rhinitis and sinusitis was denied in a January 1995 rating decision. Service connection for bronchitis was denied in an August 2003 rating decision. Given these facts, and the fact that the appellant specifically limited her claim to the question of entitlement to service connection for chronic obstructive pulmonary disease the Board will limit its review to that disease. The service treatment records include an October 1992 x-ray report stating that views of the Veteran's chest reflected possible early chronic obstructive pulmonary disease. Physical examination yielded a diagnosis of probable asthma. In April and May 1990, December 1992, April 1993, and December 1993 she was treated for bronchitis. The Veteran's January 1994 a preservice history of asthma. Her separation physical noted at that time revealed normal lungs. The post service evidence contains an MRI report of the Veteran's chest dated in November 1994. The lung fields were well expanded and clear. A negative chest was noted. The post service record contains no evidence of treatment for or a diagnosis of chronic obstructive pulmonary disease. In this case, initially, the Board notes that a finding of an in- service incurrence of chronic obstructive pulmonary disease in itself is tenuous at best as treatment records merely noted the "possibility" of chronic pulmonary obstructive disease. More significantly, the evidence preponderates against finding that the Veteran presently has chronic obstructive pulmonary disease. As stated above, establishing service connection requires medical evidence of a current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The absence of any one element requires the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). In this case, as the Veteran's records preponderate against finding that the Veteran has chronic obstructive pulmonary disease, the evidence has thus failed to fulfill the requirements to show service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The claim of entitlement to service connection for chronic obstructive pulmonary disease is therefore denied. ORDER New and material evidence has not been received to reopen a claim for service connection for a functional heart murmur. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for chronic obstructive pulmonary disease is denied. REMAND In March 2005, the Veteran claimed that she should receive a higher rating for fibrocystic breast disease. She was afforded a VA examination in August 2005 during which the Veteran contended that her symptoms had increased. The examiner noted that VA medical center treatment notes showed that she was seen in the emergency room with complaints of discharge from the left breast. The Veteran stated that she had a brown discharge twice in the six months prior to the examination. In its September 2005 decision, the RO denied the Veteran's claim for a compensable rating based on the August 2005 findings. In her July 2010 informal hearing presentation, the representative that the appellant's symptoms had increased since her August 2005 VA examination. As the appellant's last VA examination is five years old and as she asserts that her symptoms are worse, the Board finds that a new examination is in order. See 38 C.F.R. § 3.326 (where there is a claim for disability compensation but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). Finally, while the Veteran was provided with VCAA notice, she was not provided notice how VA assigns effective dates and disability ratings. This error must be remedied upon remand. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim, and provide notice of the type of evidence that VA will seek to obtain, and the type of evidence that is expected to be furnished by her. The Veteran must be notified of VA's practices in assigning disability evaluations and effective dates. 2. The RO should take appropriate action to secure any records which have not been previously secured for inclusion in the claims file. Duplicate records should NOT be added. All attempts to secure any new evidence must be documented in the claims file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 3. Thereafter, the RO should schedule the Veteran for a new examination. The Veteran's claims folder, to include any newly obtained treatment records, must be provided to the examiner for review. All indicated studies must be performed, and all findings should be reported in detail. In accordance with the latest AMIE worksheet for disorders of the breast, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of her fibrocystic breast disease. The examiner must provide an opinion concerning the degree of any industrial impairment caused by her fibrocystic breast disease. A full rationale must be provided for the opinions, with a complete discussion of the evidence of record. 4. The Veteran is hereby notified that it is her responsibility to report for any ordered VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any ordered examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. The RO should review the examination report to ensure that it is in complete compliance with the directives of this remand. If it is deficient in any manner, the RO must implement corrective procedures at once. 6. Thereafter, the RO should readjudicate the claim. If any benefit sought is not granted, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs