Citation Nr: 1306157 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-14 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for Hodgkin's lymphoma. 2. Entitlement to service connection for Hodgkin's lymphoma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO) which declined to reopen the claim for service connection for Hodgkin's Lymphoma. The Veteran testified at a Decision Review Officer hearing at the RO in January 2012 and a video conference hearing before the undersigned Veterans Law Judge in December 2012. The transcripts of both hearings are in the Veteran's file. The issues of entitlement to service connection for posttraumatic stress disorder, neurodermatitis, a lung condition (including lung cancer and scarring of the lungs), and a heart condition have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). 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 Hodgkin's lymphoma 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 Hodgkin's lymphoma was denied in a September 2002 rating decision on the bases that the Veteran did not suffer from this condition during his active service or within one year thereafter, and that there was no evidence that he was exposed to herbicides during his active service. The Veteran initiated, but did not perfect, an appeal of this denial which became final in September 2003. 2. Evidence received since September 2003 was not previously considered by agency decision makers, is not cumulative and redundant of evidence already of record, relates to an unestablished fact, and raises the reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening a previously denied claim of service connection for Hodgkin's lymphoma have been met. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is reopening the Veteran's previously denied claim and remanding it for further development; any discussion of the duties to notify and to assist is premature and thus unnecessary. II. New and Material Evidence Service connection for Hodgkin's lymphoma was denied in a September 2002 rating decision. The Veteran initiated an appeal, and a statement of the case was issued, but he did not then perfect his appeal. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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). 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). In a June 2012 letter, the Veteran stated that he attended a chemical, biological, and radiological course through the Army in June 1964. He stated that he was exposed to various toxins during this course, including ionizing radiation, mustard gas, chlorine gas, and other substances. He provided a certificate from the Army noting that he attended this course. In his December 2012 hearing, the Veteran and his representative argued that his Hodgkin's lymphoma could relate to the substances to which he was exposed during this training. Since this evidence was not before VA at the time of the Veteran's previous denial, it is new. As it relates to an unestablished fact necessary to substantiate his claim, it is also material. Reopening of the Veteran's claim for service connection for Hodgkin's lymphoma is warranted. ORDER Reopening of the previously denied claim of service connection for Hodgkin's lymphoma is granted. REMAND For two reasons, the Veteran's reopened claim requires a remand for further development. First, lymphomas in general (but not Hodgkin's disease) and various other cancers are subject to the presumption regarding exposure to ionizing radiation; Hodgkin's disease is also subject to the presumption regarding exposure to certain herbicide agents. 38 C.F.R. §§ 3.307, 3.309 (2012). If it is determined that the Veteran was exposed to one of these substances and that he suffers from a condition subject to the presumption, service connection may be warranted. VA must determine what chemicals or toxins, if any, the Veteran was exposed to during his June 1964 training course. Second, regardless of whether the Veteran was exposed to substances that trigger the presumption, VA must examine the Veteran and obtain a medical opinion as to whether his Hodgkin's lymphoma is related to his active service. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records dated from January 2011 and thereafter and associate these records with his claims folder. 2. Determine what chemicals and toxins the Veteran was exposed to during his June 1964 training course. Contact the U.S. Army and Joint Services Records Research Center (JSRRC), the National Archives and Records Administration (NARA), the Center for Unit Records Research (CURR), or any other agency or group that may have information regarding this course. All attempts to obtain this information must be documented in the Veteran's claims file. If no such records are available, then a formal finding of unavailability must be made on the record. 3. Schedule the Veteran for a VA examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated studies and tests must be performed. After examining the Veteran, the examiner is to answer the following questions: a) Is it at least as likely as not (a 50 percent or greater probability)that the Veteran's Hodgkin's lymphoma (or any other condition from which the Veteran is currently afflicted) is related to chemicals, radiation, or toxins to which he was exposed during his June 1964 training course or during his service in the Republic of Korea? b) Regardless of your answer to question (a), is it at least as likely as not (a 50 percent or greater probability (that the Veteran's Hodgkin's lymphoma is caused by or related to his active service? The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs