Citation Nr: 1237676 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 02-13 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for residuals of a partial stomach removal. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from August 1951 to August 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an September 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana which, in pertinent part, denied the Veteran's claim for service connection for residuals of a partial stomach removal. A review of the Virtual VA paperless claims processing system does not reveal any documents pertinent to the instant appeal. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a December 2004 RO (Videoconference) hearing. A hearing transcript has been associated with the claims file. The Board remanded the instant claim in February 2005 and June 2007. In its June 2007 remand, the Board recharacterized the instant claim as to require the submission of new and material evidence. The claim was then denied in an April 2008 decision. The Veteran subsequently appealed the Board's April 2008 decision to the Court of Appeals for Veterans Appeals (CAVC). An April 2010 CAVC Order and Memorandum Decision vacated the Board's April 2008 decision and remanded the instant claim to the Board for further adjudication. The Board again remanded the instant claim in October 2010. The issue of entitlement to an increased rating for hemorrhoids was raised by the Veteran in December 2011. This claim does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's claim for service connection for residuals of a partial stomach removal was last denied in an unappealed July 1977 rating decision as the evidence of record did not establish a nexus between this disability and service. 2. Evidence submitted since the July 1977 rating decision does not include information pertaining to a fact necessary to substantiate the claim, the absence of which was the basis of the previous denial. CONCLUSIONS OF LAW 1. The July 1977 rating decision, which denied service connection for a post-operative gastrectomy, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.105(a) (2011). 2. Evidence received since the July 1977 rating decision, which denied service connection for a post-operative gastrectomy, is not new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). Proper VCAA notice 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 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The CAVC has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA requires, in the context of a claim to reopen, that VA 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 that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided with VCAA notice with regards to his request to reopen a claim for service connection for residuals of a partial stomach removal in an August 2007 letter. This letter provided notice as to what evidence was required to substantiate his claims. This letter informed him of what evidence VA would obtain, of what evidence he was expected to provide, and of what assistance the VA could provide the Veteran in obtaining evidence from other agencies. In addition, this letter provided proper notice under Dingess. The August 2007 letter also informed the Veteran that his claim for service connection for residuals of a partial stomach removal had been previously denied. These letters informed him of the need for new and material evidence to reopen these claims, provided regulatory definitions of "new" and "material" and informed him of the bases for the prior denials. This letter provided proper preadjudication notice as required by Kent. The CAVC has held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. See Pelegrini, supra. The timing deficiency was cured by readjudication of the claim in an January 2008 supplemental statement of the case (SSOC) after the notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the Veteran and/or his representative have argued in the CAVC appeal that VA erred by failing to inform the Veteran that an independent medical opinion addressing the etiology of his claimed residuals of a partial stomach removal may be obtained to support his claim. A notice error can be cured by actual knowledge of the information on the part of the claimant. Sanders v. Nicholson, 487 F.3d 881, 888-9 (Fed. Cir. 2007), George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). The Veteran has had a meaningful opportunity to participate in the adjudication of the instant claim, as he has had more than two years since making this argument to the CAVC to submit such an opinion. In addition, the Veteran has displayed actual knowledge that such an etiological opinion could substantiate his claim. Thus, any VCAA notice error in regard to the instant claim is deemed harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim(s). 38 U.S.C.A. §5103A; 38 C.F.R. §3.159 (c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has no duty to provide an examination or obtain a medical opinion prior to reopening a claim that has been finally denied in a prior decision. 38 C.F.R. § 3.159(c)(4)(iii). VA has met the duty to assist the Veteran in the development of the instant claim. The evidence of record includes the service treatment records, various private treatment records, VA treatment records and various VA examination reports. In an October 2004 statement, the Veteran's representative indicated that the facility in which the Veteran's claimed stomach surgery was performed no longer existed and that records from the successor facility were destroyed after twenty years. Further, a VA examination is not required as the claim for service connection for residuals of a partial stomach removal is not being reopened. See 38 C.F.R. § 3.159(c)(4)(iii). The Veteran testified during the October 2004 hearing that he had been awarded Social Security Administration (SSA) benefits in the late 1980s due to a back injury. There is no evidence in the claims file that the Veteran received these benefits due to his claimed residuals of a partial stomach removal. As such, these records are not relevant to the instant claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (there is no duty to obtain SSA records when there is no evidence that they are relevant). The CAVC has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the December 2004 hearing, the issue on appeal was identified. The Veteran was asked to describe his in-service stomach symptoms and his post-service treatment for his stomach condition. He was also asked to describe the impact of his Reserves service on his claimed stomach condition. The Board therefore concludes that it has fulfilled its duties under Bryant. The Board remanded the instant claim in February 2005 to allow a letter to be sent to the Veteran requesting that he identify the names and addresses of all health care providers who had afforded him treatment for the claimed condition. The Veteran was asked to provide this information in a March 2005 letter; he responded that he had already provided the requested information in a July 2005 response. This matter was again remanded in June 2007 to allow proper Kent notice to be provided to the Veteran; such notice was provided in August 2007. The Board therefore concludes that there has been substantial compliance with the terms of the previous remands. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, there is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Therefore, the Board determines that VA has made reasonable efforts to the assist the Veteran in obtaining the evidence necessary to substantiate the instant claim. Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Grober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). Certain chronic disabilities such as peptic ulcers are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Petition to Reopen Criteria A decision of the RO becomes final if a notice of disagreement is not received within one year of the notice of that decision. 38 U.S.C.A. § 7105. A finally adjudicated claim will be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. In deciding whether new and material evidence has been submitted VA looks to the evidence received since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). New evidence is defined as existing evidence not previously submitted to VA and material evidence is defined as 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). The newly presented evidence is presumed to be credible for purposes of determining whether or not it is new and material. Savage, supra. If VA either receives or associates with a claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim at any time after VA issues a decision on a claim, VA will reconsider the claim. 38 C.F.R. § 3.156(i). These official service department records include service records that are related to a claimed in-service event, injury or disease, regardless of whether such records mention a veteran by name. 38 C.F.R. § 3.156(i). Residuals of a Partial Stomach Removal Claim A September 1977 rating decision denied the Veteran's claim for service connection for a post-operative gastrectomy as the evidence of record did not establish a nexus between a current disability and service. A notice of disagreement was not received within one year of notification of this rating decision, thus rendering it "final" under 38 U.S.C.A. § 7105(c). There were no submissions within one year of this rating decision which would warrant consideration under 38 C.F.R. § 3.156(b). Evidence considered in the September 1977 rating decision included the Veteran's service treatment records and an August 1977 VA examination. An August 1951 service entrance examination and an August 1953 service discharge examination were negative for any relevant abnormalities. The remaining service treatment records were negative for complaints, treatments or diagnoses related to any gastrointestinal disability. In a July 1977 Application for Compensation or Pension (VA Form 21-526), the Veteran indicated that he was not a member of the Reserves or the National Guard. An August 1977 VA examination reflected the Veteran's reports that he had undergone a laparotomy for a sub-total gastrectomy as treatment for peptic ulcers in 1974. Physical examination revealed a postoperative midline healed scar seven inches by one eighth inch as a result of a laparotomy incision and a subtotal gastrectomy. Diagnoses included postoperative subtotal gastrectomy for peptic ulcers. Evidence received since the September 1977 rating decision included various private treatment notes and various VA examinations. A February 1985 private treatment note reflected the Veteran's reports of having two-thirds of his stomach removed 15 years ago due to ulcers. A May 1998 VA examination reflected the Veteran's reports that he underwent surgery for peptic ulcer disease, during which part of his stomach was removed, in the early 1980s. An August 2001 VA examination reflected the Veteran's reports that he had undergone stomach surgery in the mid to late 1950s due to a stomach ulcer. This surgery occurred after his active duty service but while he was in the Reserves. In a November 2001 statement, the Veteran wrote that he had been rushed to a hospital where he had two-thirds of his stomach removed while on inactive duty. In an April 2002 statement, the Veteran wrote that he began treatment for a stomach problem in the 1956 time frame and underwent surgery in 1964 for the removal of two-thirds of his stomach. In an October 2002 notice of disagreement, the Veteran wrote that the symptoms of his stomach condition began during his active duty service prior to 1953. He experienced blood in his stool and the throwing up of blood during active duty service but did not complain of these symptoms. He experienced these symptoms until emergency stomach surgery was conducted in 1956. In a July 2003 substantive appeal, the Veteran indicated that he was under a Reserves obligation until August 1959 and that he had undergone stomach surgery in 1956. In a December 2003 statement, the Veteran wrote that his stomach surgery occurred between July and September 1956 and that the facility in which he received medical care was "no longer standing." During a December 2004 hearing, the Veteran testified that he began working at a gas and chemical company after service discharge in 1956. He was not treated for a stomach condition and he had "annoying" symptoms, including pain, during service. He received treatment from a private physician for his stomach condition from 1953 to 1956 and underwent surgery in 1956. He attended "monthly meetings" in the Reserves from 1953 to 1959 and could not say for sure whether anything happened during his Reserves service that caused his stomach ulcers. He did not complain of stomach symptoms because it did not bother him during active duty service. In a July 2005 statement, the Veteran wrote that he underwent surgery to have two-thirds of his stomach removed in 1956. The Veteran's claim for service connection for a post-operative gastrectomy, now claimed as residuals of a partial stomach removal, was last denied in a September 1977 rating decision as the evidence of record did not establish a nexus between a current disability and service. As such, medical evidence establishing such a nexus is required to reopen this claim. No such evidence has been received. The newly submitted VA treatment notes and private treatment notes document treatment for a variety of conditions but do not contain an opinion regarding the etiology of his claimed residuals of a partial stomach removal. The Board notes that the Veteran and/or his representative appear to have presented new etiological theories for the Veteran's claimed residuals of a partial stomach removal, namely that his peptic ulcer disease occurred within one year of service discharge and that his surgery occurred while he was obligated to serve in the Reserves. However, a separate theory in support of a claim for a particular benefit is not equivalent to a separate claim and a final denial on one theory is a final denial on all theories. See Ashford v. Brown, 10 Vet. App. 120 (1997) (reliance upon a new etiological theory is insufficient to transform a claim which has been previously denied into a separate and distinct, or new, claim). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004). These newly presented arguments regarding the etiology of the Veteran's claimed residuals of a partial stomach removal are therefore insufficient to reopen this claim. Regarding the testimony and various statements provided by the Veteran, the Board notes that the Veteran is not shown to possess the appropriate medical expertise and training to competently offer an opinion as to whether the Veteran currently has residuals of injuries or diseases he allegedly incurred during service, any statements purporting to do so cannot constitute material evidence. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). For these reasons, the unsupported testimony, even if new, does not serve as a predicate to reopen a previously disallowed claim under the facts of this case. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Laypersons are not competent to give a medical opinion as to diagnosis or causation. Therefore, these statements are not new and material evidence, see Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999), and are insufficient to reopen the claim. See Savage v. Gober, 10 Vet. App. 488 (1997); Moray. As none of the additional evidence received since the September 1977 denial establishes a nexus between the Veteran's claimed residuals of a partial stomach removal and his service, and the absence of such evidence was the basis for the prior denial, new and material evidence has not been received. This claim is therefore not reopened and the appeal must be denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been received, the claim for service connection for residuals of a partial stomach removal is not reopened. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs