Citation Nr: 1242011	
Decision Date: 12/10/12    Archive Date: 12/20/12

DOCKET NO.  10-13 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus, type II (DM II), to include as due to herbicide exposure. 

2. Entitlement to service connection for residuals of kidney cancer (renal cell carcinoma), status post nephrectomy, to include as due to herbicide exposure. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel


INTRODUCTION

The Veteran had active military service from February 1970 to October 1971. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal with respect to the diabetes mellitus issue, only.  The Virtual VA system does show that additional VA medical and private medical records have been associated with the claims file following the issuance of the February 2010 statement of the case (SOC).  VA associated these records to the virtual claims file without a waiver of the Veteran's right to have the evidence considered as an initial matter by the RO. See 38 C.F.R. §19.9; but see also February 2012 "Waiver of AOJ Consideration of Additional Evidence and Waiver of 30 Day Waiting Period."  The Board finds, however, that those documents are not pertinent to the present claim for diabetes and consist of records of treatment for disorders other than the currently claimed disorder.  The Board finds that the new evidence need not be considered by the RO prior to this appellate review. 

The issues of entitlement to service connection for scarring, status post- nephrectomy, entitlement to service connection for hepatitis A, entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder, whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a liver condition, to include as due to hepatitis A, and entitlement to TDIU, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See October 2011 and February 2012 Statements from Veteran, and VA Examination for PTSD in December 2011.  Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action.  

The issue of entitlement to service connection for residuals of kidney cancer, status post nephrectomy, to include as due to herbicide exposure, 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. In a September 2006 rating decision, the RO denied a claim of entitlement to diabetes mellitus, Type II; the Veteran did not appeal that determination and it became final. 

2. The evidence submitted since September 2006 does not relate to a necessary unestablished fact and fails to raise a reasonable possibility of substantiating the Veteran's claim for service connection for diabetes mellitus, type II. 


CONCLUSIONS OF LAW

1. The September 2006 rating action that denied the claim of entitlement to service connection for diabetes mellitus, Type II, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 

2. New and material evidence has not been received since the September 2006 rating action that declined to reopen the claim of entitlement to service connection for diabetes mellitus, type II; the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) 

As provided by the VCAA, VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Duties to Notify 

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). 

These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. 

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in February 2008.  This letter informed him of the evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining supporting evidence.  This included apprising him of the deficiencies in the evidence when his claim seeking entitlement to service connection for diabetes mellitus, type II, was previously considered in September 2006. See Kent v. Nicholson, 20 Vet. App. 1 (2006). See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006), wherein VA's Office of General Counsel  issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial.  The letter also complied with Dingess by discussing the downstream disability rating and effective date elements of the claim. See Dingess/Hartman, supra. 

Duties to Assist 

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained his service treatment records (STRs) and all available private medical records.  With regard to the Veteran's claims to reopen his previously denied claim for service connection for diabetes mellitus, type II, a VA examination is not required in this case in the absence of new and material evidence. 38 C.F.R. § 3.159(c)(4)(C)(iii).  

The Veteran has not reported that he is in receipt of Social Security Administration  (SSA) benefits for his claimed diabetes.  Absent any evidence showing that the Veteran is in receipt of said benefits for his claimed disorder, VA need not attempt to obtain his SSA records. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). See VA Examination, PTSD, December 2011. 


As noted in the INTRODUCTION portion of this decision, the Virtual VA system does show that additional VA medical and private medical records have been associated with the claims file following the issuance of the February 2010 SOC.  VA associated these records to the virtual claims file without a waiver of the Veteran's right to have the evidence considered as an initial matter by the RO. See 38 C.F.R. §19.9; but see also February 2012 "Waiver of AOJ Consideration of Additional Evidence and Waiver of 30 Day Waiting Period."  The Board finds, however, that those documents are not pertinent to the present diabetes claim and consists of records of treatment for disorders other than the currently claimed disorder (i.e., diabetes mellitus).  The Board finds that the new evidence need not be considered by the RO prior to this appellate review. 

As VA has provided the Veteran with proper notice, assisted the Veteran in obtaining all treatment records adequately identified by the Veteran, and provided the Veteran with a VA examination when necessary, the Board is therefore satisfied VA has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A . 

New and Material Evidence 

In general, unappealed RO and Board decisions are final. See 38 U.S.C.A. § 7104 , 7105 (West 2002); 38 C.F.R. § 20.1100 (2012).  Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 

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 C.F.R. § 3.156(a) (2012). 

To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of evidence of record at the time of the last prior final disallowance and must prove merits of the claim as to each central element that was specified as a basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). 

An adjudicator must follow a two-step process in evaluating previously denied claims.  First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material.  If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits.  Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). 

In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

Diabetes Mellitus, Type II 

The Veteran seeks service connection for diabetes mellitus, type II, as secondary to in-service herbicide exposure.  In this case, the record reflects that the Veteran served in the Republic of Vietnam from 1970 to 1971.  He is thus entitled to the presumptive service connection provisions set forth under 38 C.F.R. § 3.309(e) (Diseases associated with exposure to certain herbicide agents). See generally, 38 C.F.R. §§ 3.307, 3.309.

The Veteran's original claim for service connection for diabetes mellitus, type II, was denied in September 2006 rating decision on the basis that there was no medical evidence of a current diabetes diagnosis.  He neither appealed the decision nor submitted new and material evidence within the one year appeal period.  Thus, the decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103; see also 38 C.F.R. § 3.156(b), and Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding when VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final). 

In January 2008, the Veteran filed a claim his reopen his previously denied claim for service connection for diabetes mellitus, type II.  The RO again denied the Veteran's claim in a May 2008 rating decision, which is the subject of the current appeal.  

Therefore, based upon the procedural history outlined above, the pertinent question in this case is whether new and material evidence has been submitted since the last final rating decision in September 2006, which denied his claim of service connection for diabetes mellitus.  

At the time of the September 2006 rating decision, the evidence of record pertaining to the Veteran's diabetes mellitus, type II, claim consisted of the Veteran's service treatment records, private treatment records, and VA treatment records, dated through 2006.  None of the treatment records associated with the claims file at that time reflected diabetes-related treatment or diagnoses.  

Since the February 2006 rating decision, new evidence has been associated with the Veteran's claims folder including new VA treatment records, private treatment records, and the Veteran's statements.  Once again, however, none of the associated medical records reflect a current diabetes diagnosis.  In fact, a January 2009 VA treatment note expressly indicates that the Veteran has "no signs of diabetes."  More recent VA and private treatment records are likewise silent as to a current diabetes diagnosis.  

Thus, while the evidence outlined above is new, it is not material because it does not constitute competent medical evidence showing that the Veteran has a current diabetes mellitus diagnosis.  While lay evidence may be competent and credible on the issues of diagnosis and etiology in some cases, here the determination of the onset of diabetes mellitus, type II, is a medical question not subject to competent identification by a lay person; furthermore, the Veteran has not reported related symptoms or a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).  Accordingly, because the new evidence of record fails to provide a reasonable possibility of substantiating the Veteran's service-connection claim, this evidence does not provide a basis for reopening the claim. See 38 C.F.R. § 3.156. 

As new and material evidence has not been submitted, the Veteran's claim to reopen his previously denied claim for entitlement to service connection for diabetes mellitus, type II, is denied. 


ORDER

New and material evidence has not been submitted; the application to reopen the previously denied claim of entitlement to service connection for diabetes mellitus, type II, is denied. 

REMAND

The Board finds that further development is necessary before the Board decides this appeal.

The Veteran claims that his renal cell carcinoma (or residuals thereof, to include renal insufficiency and chronic kidney failure of the right/remaining kidney) is etiologically related to his exposure to herbicides while serving in Vietnam.  

By law and through his service in Vietnam, the Veteran is presumed to have been exposed to herbicides. 38 U.S.C.A. § 1116(a)(3) (West 2002); 38 C.F.R. §§ 3.307, 3.309.  However, the renal cell carcinoma is not among those recognized by VA, through research conducted by the National Academy of Sciences, as one which is presumptively linked to herbicide exposure.  Apart from the lack of such a presumption of causality, the Veteran seeks service connection on a direct basis and essentially asserts that renal cell carcinoma can be caused by dioxins found in herbicides used during his service in Vietnam. See Article Submitted by Veteran Regarding Cancer and Agent Orange Exposure; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

By way of history, the evidence reflects that the Veteran underwent a left laparoscopic nephrectomy (removal of the left kidney) in September 2007; an October 2007 biopsy of the removed kidney tissue revealed renal cell carcinoma (RCC) of the left kidney.  The Veteran claims that he currently suffers from residual renal conditions, such as renal insufficiency and chronic right kidney disease, due to the removal of his left kidney. 

As an initial matter, along with his original claim for service connection in November 2007, the Veteran indicated that he had received treatment for "kidney cancer" at Baptist Clinic (or Hospital) in 2007. See November 2007 VA Form 21-4138.  While the claims file contains a recent (i.e., 2011) records request for Baptist Hospital in Beaumont, Texas, that search was apparently limited to treatment records from 2011. See VA Form 21-4142, November 2011.  Any such outstanding private treatment records are relevant to the appeal for kidney cancer as they may contain information regarding continuity of symptoms, dates of onset, or medical opinions on causation.  These records should thus be obtained upon remand. 

In addition to the foregoing development, the Board finds that a remand is warranted to obtain a medical opinion as to the likely causal relationship, if any, between the Veteran's presumed herbicide exposure and his subsequent development of renal cell carcinoma.  See McLendon, 20 Vet. App. at 81; accord 38 U.S.C.A. § 5103A.  Again, the Board recognizes that this disorder is not expressly contained in the list of diseases presumed to be associated with exposure to herbicides under 38 C.F.R. § 3.309(e).  However, as indicated above, this fact does not preclude a claimant from attempting to establish service connection on a direct basis.  Moreover, the Board observes that Note (1) of the regulation offers guidance as to what disorders are included in the term "soft tissue sarcoma."  This Note, however, does not provide an exhaustive list of diseases that qualify as soft tissue sarcoma.  In this regard, the Board is left to wonder whether the Veteran's renal cell carcinoma may constitute a type of soft tissue sarcoma under 38 C.F.R. § 3.309(e), and must solicit the expertise of a medical professional to make such a determination. Id., at 124 (noting that the Board may not rely on its own lay opinion as to medical issues); accord Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and ask that he complete and return the necessary authorization (VA Form 21-4142) for VA to obtain the medical treatment records dated in 2007 from Baptist Clinic (or Hospital) as referenced by the Veteran in his November 2007 statement, and any other outstanding private treatment records pertaining to his renal cell carcinoma claim.  Ask the Veteran to assist in obtaining these records by providing the relevant dates of treatment, names of the treating physicians, phone numbers and addresses; or by himself providing these treatment records if, for example, he has them in his personal possession.  If he provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. See 38 C.F.R. § 3.159(c)(1) (2012).

Any negative development should be noted in the claims file.  The Veteran should also be apprised of any negative development.

2. Thereafter, the Veteran must be afforded an appropriate examination with respect to his claim for service connection for renal cell carcinoma (claimed as kidney cancer), status post left nephrectomy.  The claims folder must be made available to the examiner.  As part of the examination, the examiner is requested to provide an opinion as to whether it is at least as likely as not, i.e., at least a 50 percent probability, that the Veteran's renal cell carcinoma of the left kidney, status post-nephrectomy, is causally related to his period of active service or any incident thereof, to include his presumed exposure to herbicides in Vietnam. 

In addition, the clinician is asked to address whether renal cell carcinoma constitutes a type of "soft tissue sarcoma." or any other disease listed under 38 C.F.R. §3.309(e).  A supporting rationale must be provided for all opinions expressed. 

3. Thereafter, the issues on appeal should be readjudicated.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

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).

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. 2012).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs