Citation Nr: 1129563 Decision Date: 08/10/11 Archive Date: 08/23/11 DOCKET NO. 06-02 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for atherosclerotic cardiovascular disease. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for sinusitis. 3. Entitlement to service connection for atherosclerotic cardiovascular disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from May 1964 to November 1984. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a May 2005 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In September 2006, the appellant testified before a Decision Review Officer (DRO). In December 2007, he testified before the undersigned Veterans Law Judge (VLJ). Transcripts of these hearings are associated with the claims folder. In May 2008, the Board remanded this case for evidentiary development. Again, in August 2009, the Board remanded this case for further evidentiary development. The case has been returned to the Board for disposition. With respect to reopening based on new and material evidence the claim for service connection for atherosclerotic cardiovascular disease, the Board notes that the appellant through his representative now alleges this secondary to herbicide exposure. As such, he has essentially articulated a new theory of entitlement to service connection. This theory of entitlement was not previously considered by VA adjudicators. But in this regard, it is noted that, in Ashford v. Brown, 10 Vet. App. 120 (1997), the Court held that when a veteran attempts to reopen a claim by bringing a new etiological theory for the causation of his disease than that which was previously addressed in the earlier final denial, such new theory of causation does not itself constitute a new claim, obviating the necessity of presenting new and material evidence for that same claim. See also Velez v. Shinseki, 23 Vet. App. 199, 206 (2009) (holding that regardless of whether the RO first adjudicated a veteran's cervical spine disorder claim on both direct and secondary bases, his failure to timely appeal that denial now foreclosed adjudication on a direct basis without submission of new and material evidence to reopen). Thus, the new theory of entitlement must be considered on a new and material basis. As such, the issue on appeal is correctly characterized as a claim to reopen based on new and material evidence. The issues of service connection for atherosclerotic cardiovascular 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. Service connection for atherosclerotic cardiovascular disease and sinusitis was denied in an August 1999 rating decision. The appellant was informed of the determination and of the right to appeal. No appeal was made. 2. The appellant filed a claim to reopen the issues of service connection for atherosclerotic cardiovascular disease and sinusitis in September 2004. 3. New and material evidence has been submitted to reopen the claim for service connection for atherosclerotic cardiovascular disease. 4. Evidence added to the record since the prior final of service connection for sinusitis is cumulative of previously reviewed evidence, and it does not relate to previously unestablished facts. CONCLUSIONS OF LAW 1. The August 1999 rating decision denying service connection for atherosclerotic cardiovascular disease is final; new and material evidence sufficient to reopen the claim has been submitted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 2. The August 1999 rating decision denying service connection for sinusitis is final; new and material evidence sufficient to reopen the claim has not been submitted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant seeks to reopen the claims for service connection for atherosclerotic cardiovascular disease and sinusitis. I. VCAA: Claims to Reopen Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as rating and effective date. In a claim to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the notice letter provided to the appellant in October 2004 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. This notice was provided prior to the adverse adjudication from which this appeal arises. Although notice of the disability rating and effective date elements of his claim was provided in March 2007 after the initial adverse determination from which this appeal arises, the claim was subsequently readjudicated affording the appellant due process of law. The RO readjudicated the claim in March 2007, June 2009, and June 2010. The RO sent to the appellant Supplemental Statements of the Case dated the same. Consequently, the Board finds that adequate notice has been provided, as he was informed about what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. Moreover, the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. VA further has a duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. That is, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). However, the duty to assist in the context of claims to reopen is limited to obtaining (1) making reasonable efforts to obtain non-Federal department or agency records, (2) obtaining records in the custody of a Federal department or agency, and (3) obtaining VA and military records. 38 C.F.R. § 3.159(c)(1), (2), and (3). Here, the appellant reported treatment at Fort Campbell in Kentucky for sinusitis and hypertension within one year after retiring from military service. VA requested treatment records from Fort Campbell and the National Personnel Records Center (NPRC). In June 2008, Fort Campbell Hospital reported that they did not have records and referred VA to the NPRC. In March 2010, VA received a negative response from the NPRC in regard to their request for outstanding treatment records. In June 2010, the Appeals Management Center notified the appellant by phone call and letter that VA had been unable to obtain the Fort Campbell treatment records he had identified. In view of VA's outreach to both Fort Campbell and the NPRC for records, VA's receipt of responses from Fort Campbell and the NPRC, and VA's notice to the appellant of the results of their records requests, the Board finds that VA has clearly made "reasonable efforts" to obtain the medical records identified by the appellant and provided the appellant with ample opportunity to provide such records after notification that VA's attempts had been unsuccessful. The appellant has offered no response, other than to proceed with the adjudication of this claim. See Expedited Processing Waiver of 30 Day Waiting Period, dated June 2010. Also, the Board is also satisfied there was substantial compliance with the Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, as there is no indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. Lastly, the Board notes that a specific VA examination/opinion is not needed to consider whether the appellant has submitted new and material evidence, but rather, the Board has reviewed all the evidence submitted to the claims file since the last final denial. Therefore, remand for a VA examination/opinion is not warranted. See 38 C.F.R. § 3.159(c)(4)(iii). Consistent with its duty to assist obligations, VA provided the appellant the opportunity to have a hearing. The appellant testified before a DRO in September 2006. He further testified before this VLJ in December 2007. In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing has the duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge outlined the issues on appeal and asked questions of the appellant, explaining the evidence that was lacking or missing which would help substantiate his claim. The Veterans Law Judge explained that he was looking for evidence after service. The Veterans Law Judge has complied with 38 C.F.R. § 3.103(c)(2). Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. Therefore, VA satisfied its duty to assist and the Board finds no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the 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 v. Principi, 16 Vet. App. 183 (2002). All relevant facts with respect to the claim addressed in the decision have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Law and Regulations Governing the Reopening of Claims When the RO has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105. If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed except as may be provided by regulations not inconsistent with this title. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. Under the pertinent laws and regulations, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim, which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). For claims filed on or after August 29, 2001, 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. 38 C.F.R. § 3.156(a). According to the plain language of the regulation, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Furthermore, in determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). A. Atherosclerotic Cardiovascular Disease The RO denied in August 1999 the appellant's claim for service connection for atherosclerotic cardiovascular disease (coronary artery disease, ischemic heart disease). In August 1999, the RO notified the appellant of this decision. No appeal was initiated. This decision became final. The record shows that the RO denied the claim because heart disease was not shown in service and the post services diagnoses for atherosclerotic cardiovascular disease and coronary artery disease had not been linked to service. In September 2004, the appellant requested that the RO reopen his claim. Evidentiary submissions since the 1999 prior denial includes sworn testimony from hearings conducted in September 2006 and December 2007. In May 2011, the appellant's represented requested that VA reopen and grant the claim based on the significant regulatory change in the law governing presumptive service connection based on herbicide exposure and heart disease. In essence, the appellant advances a new or alternative theory of entitlement to service connection for atherosclerotic cardiovascular disease. The relevant law provides that, in some circumstances, a disease associated with exposure to certain herbicide agents (e.g., Agent Orange) will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 C.F.R. § 3.309(e). Effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. See 75 Fed. Reg. 53202 (August 31, 2010). In this case, the Board agrees that that the claim should be reopened. Evidence presented since the last final denial includes evidence of a presumptive disorder-that is, atherosclerotic cardiovascular disease-based on herbicide exposure. Although the appellant had atherosclerotic cardiovascular disease at the time of the prior final denial, this disease was not a disease presumptively associated with exposure to herbicide agents. The regulatory change in regard to 38 C.F.R. § 3.309(e), which added ischemic heart disease (atherosclerotic cardiovascular disease) to the list of diseases associated with certain herbicide agents requires cures a prior evidentiary defect. Unlike presumptive service connection for heart disease under 38 U.S.C.A. § 1101, which must be shown within the one year period after service discharge, the presumptive provisions regarding ischemic heart disease based on herbicide exposure in Vietnam have no limiting timeframe for the disease to manifest. Furthermore, it is noted that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In this case, reopening the claim would result in consideration of an alternative theory of entitlement, one which was not available to the appellant or the RO at the time of the prior final denial. Lastly, we note that the appellant was awarded the Vietnam Service Medal which makes the change in regulation potentially applicable to the appellant. Here, it is not just a mere change in law, but a change in law that may be applicable to his facts (potential Vietnam service). Accordingly, the application to reopen is granted. This matter is further addressed in the remand portion of this decision. B. Sinusitis The RO denied in August 1999 the appellant's claim for service connection for sinusitis. In August 1999, the RO notified the appellant of this decision. No appeal was initiated. This decision became final. The record shows that the RO denied the claim because chronic sinusitis was not shown in service, and because there was no evidence of treatment for sinusitis between 1962 and 1995. At the time of the August 1999 denial, the RO considered service treatment records and post service treatment records. Service treatment records show a notation for "sinus" and "hayfever" in January 1962. He was treated with "APC" (aspirin, phenacetin, and caffeine) and "PBZ." In October 1966, chronic post nasal drip was recorded. Reports of examination dated April and May 1964, November and February 1967, October 1969, July 1975, May 1976, April 1980, and December 1981 reflect normal clinical evaluation of the sinuses. Medical histories dated April 1964, November 1967, January 1968, April 1980, and December 1981 reflect that the appellant denied sinusitis along with ear, nose and throat trouble. Report of retirement examination dated November 1984 reflects normal sinuses. On the medical history portion of that examination, the appellant reported sinusitis and hay fever. He further described his health as "I am in good health and taking no medication." Post service medical records reflect an assessment for acute sinusitis, 1st episode, in May 1995. Report of VA examination dated July 1999 reflects, by history, a broken nose 3 times and nasal obstructive symptoms, along with episodes of nasal drainage, and facial pressure and pain. For treatment of sinus infections, the appellant reported that he saw his primary physician 1-2 times a year and was prescribed an extended course of Bactrim. He further reported daily use of Deconamine for congestion. The impression was "recurrent episodes of sinusitis by the criterion of facial pressure, pain and discolored nasal drainage." Evidentiary submission received since the August 1999 prior denial include statements and sworn testimony from hearings conducted in September 2006 and December 2007. The appellant testified that he first realized that he had something wrong with his sinuses was on Mount Fuji in about 1962. See December 2007 Hearing Transcript at 5. He reported having pain and sinusitis-type symptoms. He stated that he was treated with "PVZ" pills and "GI gin." The appellant indicated that he had sinus problems from then on with inclement weather. He further indicated that he had been scheduled for surgery for a deviated nasal septum. The Board has carefully reviewed the recent evidentiary submissions. However, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for sinusitis. The evidence is cumulative of evidence previously considered by the RO and, thus is not new and material. The recent evidentiary submissions-like the evidence considered by the RO in 1999-reflect the appellant's contention that he has had sinusitis since service. None of the evidentiary defects present at the time of the August 1999 decision have been cured by the recent evidentiary submissions. Furthermore, the evidence does not tend to establish any unestablished fact. The fact that he has had sinusitis was previously established and is cumulative. Similarly, the recent assertions of continuity are similar to the report he advanced during the 1999 VA examination. Such testimony is cumulative. Although the standard to reopen a claim is "low," this threshold has not been met in this case. Accordingly, the application to reopen is denied. ORDER The application to reopen the claim for service connection for atherosclerotic cardiovascular disease is granted. The application to reopen the claim for service connection for sinusitis is denied. REMAND In view of the regulatory change that added ischemic heart disease to the list of presumptive diseases associated with herbicide exposure for veterans that served in the Republic of Vietnam, coupled with the incomplete record concerning the appellant's Vietnam era service, the Board believes that remand is warranted. It is noted that forms DD 214 reflect that the appellant was issued awards and decorations that include the Combat Action Ribbon, Republic of Vietnam Campaign Medal, and Vietnam Service Medal. However, the claims file does not contain complete service personnel records, to include the dates of "in-country" Vietnam service, if any. The law provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962, through May 7, 1975, and includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). See VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace). See also VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in the Republic of Vietnam). An opinion of the General Counsel for VA held that a veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service for purposes of 38 U.S.C. § 101(29)(A). VAOPGCPREC 27-97 (July 23, 1997); see also comments section in Federal Register announcement of final rule adding diabetes to the list of Agent Orange presumptive diseases, 66 Fed. Reg. 23166 (May 8, 2001). Essentially, a veteran must set "foot" in Vietnam during the Vietnam era in order for exposure to Agent Orange to be presumed. Therefore, the RO should verify the dates of the appellant's service in the Republic of Vietnam to include any "in-country" service and adjudicate the claim for service connection for atherosclerotic cardiovascular disease de novo with consideration of the 38 C.F.R. § 3.309(e) as revised. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should verify the dates of the appellant's service in the Republic of Vietnam. 2. The AMC/RO should provide the appellant with a VCAA notice letter on the issue of service connection for atherosclerotic cardiovascular disease. This letter should include the requirements to establish service connection on a direct basis and based on the presumptive provisions governing herbicide exposure in Vietnam. 3. Thereafter, the RO should adjudicate the claim for service connection for atherosclerotic cardiovascular disease de novo with consideration of the 38 C.F.R. § 3.309(e) as revised effective August 31, 2010. 4. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs