Citation Nr: 1304807 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 08-07 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for squamous cell carcinoma of the soft palate. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty service from June 1965 to June 1968, with verified service within the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Atlanta, Georgia, which determined that new and material evidence sufficient to reopen the Veteran's claim had not been received. In October 2012, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. FINDINGS OF FACT 1. An unappealed June 2002 rating decision denied the Veteran's claim of entitlement to service connection for squamous cell carcinoma of the soft palate based on a finding that there was a lack of evidence linking this disease to herbicide exposure in service. 2. The evidence received since the June 2002 rating decision is either cumulative or redundant, and when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The June 2002 rating decision that denied entitlement to service connection for squamous cell carcinoma of the soft palate is final. 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2012). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for squamous cell carcinoma of the soft palate has not been received; the claim may not be reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The duty to notify requires, in the context of a claim to reopen, that the Secretary of VA (the "Secretary") 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. In this case, a letter dated in July 2005 provided the Veteran with the evidentiary requirements for reopening a claim of entitlement to service connection based on new and material evidence, as well as the reason(s) for the previous denial of his claim. While this letter informed the Veteran of the criteria pertaining to what constitutes new and material evidence, the division of responsibility between him and VA for obtaining the required evidence, and requested that he provide any evidence in his possession that pertained to such claim, the Board observes that the letter did not provide the Veteran with notice of the types of evidence needed in order to substantiate his underlying service connection claim. This is of no consequence, however, as the claim is not being reopened. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service treatment records and post service private treatment records. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. VA's responsibility to assist extends to requesting evidence from any new source identified by the claimant, and if that evidence is not new and material, the claim is not reopened. Moreover, as previously discussed, although the Veteran was provided with a VCAA letter informing him of the evidence needed in order to substantiate his claim, he failed to submit any medical evidence suggesting a nexus between his disease and service. VA does not have a duty to provide a VA examination if the claim is not reopened. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d at 1355-57 (Fed. Cir. 2003). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claim decided herein has been consistent with the provisions of the VCAA. The appellant has been provided every opportunity to submit evidence and argument in support of his claim and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111(2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases (including malignant tumors) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from service (one year for malignant tumors). 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. If a veteran who served in the Republic of Vietnam was exposed to an herbicide agent during active military, naval or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 (West Supp. 2012) and 38 C.F.R. § 3.307(a)(6)(iii) (2012) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 (West Supp. 2012) and 38 C.F.R. § 3.307(d) (2012) are also satisfied: chloracne; type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); AL amyloidosis, and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne and other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the above, the Federal Circuit has held that even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("The existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association."). The Federal Circuit has further held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran's claim of entitlement to service connection for squamous cell carcinoma of the soft palate. As noted above, by an unappealed rating decision dated June 2002, the RO denied the Veteran's claim of entitlement to service connection for squamous cell carcinoma of the soft palate based on a finding that there was no evidence linking this condition to herbicide exposure in service. It was noted that the Veteran had served in country in Vietnam and that squamous cell carcinoma was not considered a respiratory cancer. Following the issuance of the June 2002 rating decision and July 2002 notice letter, a timely notice of disagreement was received in November 2002, well within one year of the notification letter. However, the Veteran failed to perfect a timely appeal. Therefore, that decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. As such, the decision is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. § 5108, 7104; 38 C.F.R. § 3.156. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim that has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means 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 neither be 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran avers that he developed squamous cell carcinoma during active duty as a result of exposure to Agent Orange while serving in the Republic of Vietnam. As noted above, the Veteran had verified service within the Republic of Vietnam during the Vietnam era. He is therefore presumed to have been exposed to Agent Orange. As such, the precise nature of his cancer is of vital importance. During his recent hearing before the Board, the Veteran claimed that his cancer, diagnosed in 2001 as squamous cell carcinoma of the left soft palate and left tonsil, is actually a soft tissue sarcoma and, thus, should be accorded presumptive service connection under the provisions of 38 C.F.R. § 3.309(e). The evidence of record at the time of the last prior denial included the Veteran's service treatment records, which reveal no evidence of complaints of, treatment for, or a diagnosis of a respiratory cancer or a soft tissue sarcoma. Also of record were private treatment records showing that he had been diagnosed with squamous cell carcinoma and subsequently underwent bilateral tonsillectomy and subtotal resection of the left soft palate lesion with radiation therapy. This included a letter from one of the Veteran's private treating physicians, Dr. Barrett, which summarized the Veteran's radiation treatment for the disease. In addition, the claims folder contained letters and other written statements from the Veteran in support of his claim. The evidence received since the June 2002 rating decision includes VA Medical Center ("VAMC") treatment records, which show a history of treatment for squamous cell carcinoma. Also of record are several service personnel records, which contain such information as unit orders, special orders and the Veteran's enlistment record. The claims folder also contains the Veteran's written statements in support of his claim, as well as a transcript of his October 2012 video conference hearing before the Board. In this regard, the Board notes that, while the Veteran's updated VA treatment reports are new, in that they were not of record at the time of the June 2002 rating decision, they are not material because they fail to demonstrate a nexus between any squamous cell carcinoma of the soft palate and active duty service, including herbicide exposure. Additionally, they are not material, as they do not state or suggest that squamous cell carcinoma of the soft palate is either a respiratory cancer or a soft tissue sarcoma. 38 C.F.R. § 3.309(e). With regard to the newly-received service personnel records, VA regulations provide in 38 C.F.R. § 3.156 that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. 38 C.F.R. § 3.156(c) (2012). Although the Veteran's service personnel records were associated with the claims file after the June 2002 rating decision, these records do not contain information that is relevant to an in-service event, injury, or disease that would support reopening the Veteran's claim. As such, reconsideration based on the receipt of these records is not warranted. See 38 C.F.R. § 3.156(c)(1). Finally, with regard to the Veteran's statements and testimony, the Board finds that these assertions do not constitute new and material evidence, as they are largely a restatement of his previous claims made at the time of the June 2002 rating decision. Specifically, the Veteran reasserts his initial contention, i.e., that his squamous cell carcinoma of the left soft palate should be recognized as a respiratory cancer (e.g., cancer of the lung, bronchus, larynx or trachea) under 38 C.F.R. § 3.309(e). Alternatively, he now claims that his squamous cell carcinoma should be recognized under 38 C.F.R. § 3.309(e) as a soft tissue sarcoma. As noted above, for the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus at 513. But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible."). With regard to the Veteran's written statements and oral testimony concerning the nature of his cancer, his assertion that his squamous cell carcinoma is a respiratory cancer is not new evidence, as it was previously considered at the time of the June 2002 decision. Moreover, to the extent that he now claims that his squamous cell carcinoma is a soft tissue sarcoma, while this statement is new, lay assertions of medical causation or diagnosis do not constitute credible evidence, as lay persons are not competent to offer medical opinions. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)). In this regard, while the Veteran is competent to report the symptoms he experienced from his cancer, he is not competent to state that the diagnosis of squamous cell carcinoma, made by treating physicians and other medical diagnosticians, was incorrect. This is a determination that is medical in nature because it cannot be made based on lay observation alone. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, any opinion as to the nature of the Veteran's cancer must be made by a person with appropriate medical expertise for such an opinion to be considered competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Espiritu, supra (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Here, because the Veteran, as a lay person, has not been shown to have the appropriate medical training or expertise to diagnose the exact nature of his cancer, his opinion that squamous cell carcinoma is a respiratory cancer or soft tissue sarcoma does not constitute new and material evidence and is not sufficient to reopen his claim. The Board acknowledges the fact that, in Shade v. Shinseki, supra, the Court held that once the claimant has submitted new and material evidence as to any other missing element of service connection, the claimant does not need to provide medical nexus evidence to reopen the claim. See Id. at 118 and 120. However, in Shade, the appellant had provided new and material evidence as to the existence of a current disability, namely the existence of a skin disorder "of the same type" as the skin disorder he experienced in service, an element of service connection that had not been established at the time of the prior final denial of his claim. See Id. at 119-120, 122. The Court found that, in conjunction with the Veteran's testimony suggesting a continuity of symptomatology, the evidence submitted raised a reasonable possibility of supporting the claim. Id. By contrast, in the present case, the Veteran has not provided new and material evidence as to any element not previously established at the time of the June 2002 rating decision. As discussed above, in order to reopen this claim, the newly submitted evidence must support a finding that the Veteran's squamous cell carcinoma was caused by, or was otherwise the result of service. Unfortunately, the evidence associated with the claims file since the June 2002 rating decision, to include the Veteran's lay characterization of his disease, is not material. Accordingly, the Board finds that new and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for squamous cell carcinoma of the soft palate. ORDER New and material evidence not having been received, the claim to reopen the issue of entitlement to service connection for squamous cell carcinoma of the soft palate is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs