Citation Nr: 1307570 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 08-30 214 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received reopen service connection for urethral stricture. REPRESENTATION Veteran represented by: Ronald C. Sykstus, Attorney at Law ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from August 1954 to November 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the RO in Montgomery, Alabama, which denied reopening of the Veteran's urethral stricture service connection claim. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An unappealed September 1957 rating decision, of which the Veteran was notified in September 1957, denied service connection for urethral stricture, finding that the disorder was congenital and was not caused or aggravated by service. 2. An unappealed March 1960 rating decision, of which the Veteran was notified in March 1960, denied reopening of service connection for urethral stricture, specifically noting the congenital nature of the disorder and that there was no evidence of service incurrence or aggravation. 3. Evidence received since the March 1960 RO decision is new to the claims file, but is either cumulative of evidence previously considered or does not relate to an unestablished fact necessary to substantiate that urethral stricture was incurred or aggravated in service, and does not raise the possibility of substantiating the claim for service connection for urethral stricture. CONCLUSIONS OF LAW 1. The March 1960 rating decision, denying reopening of service connection for urethral stricture, became final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been received to reopen service connection for urethral stricture. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's petition to reopen the urethral stricture service connection 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). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b). In claims to reopen, prior to the adjudication of petitions to reopen service connection claims, a veteran is to be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. Kent v. Nicholson, 20 Vet. App. 1, 5 (2006). Prior to initial adjudication of the Veteran's petition to reopen service connection, a February 2007 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). This notice addressed the five elements of service connection, the evidence which VA will seek to provide and the evidence that the Veteran is expected to provide. The February 2007 letter provided notice of the elements of new and material evidence and the reasons for the prior denial. The criteria of Kent are satisfied. See Kent. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the petition to reopen. The Veteran has insisted that his service treatment records have been lost. The Veteran apparently contacted the National Personnel Records Center and was informed that his records were unavailable, presumably destroyed in a 1973 fire. As was explained by the RO, the Veteran's service treatment records are of record. The Veteran filed his original claim as he separated from service and his records were transferred to VA. They were in VA possession at the time of the 1973 fire. As a result, they were not destroyed. The service treatment records appear to be complete, as they cover the period of the Veteran's service, including report of service entrance examination in August 1954 and service separation examination in October 1956, various treatment entries, summary of hospitalization (June to July 1956), hospitalization nursing notes and clinical notations, medical board report, physical evaluation board findings, and dental records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii). The Veteran was not afforded an examination in association with his petition to reopen. As discussed below, the Board concludes that new and material evidence has not been received on this claim. Accordingly, there is no duty to provide an examination and no error exists. See id. Reopening Service Connection for Urethral Stricture The Veteran filed an original claim for service connection for urethral stricture in October 1956 as he was being separated from service. The claim was denied in a September 1957 rating decision, which found that the disorder was congenital and was not caused or aggravated by service. The Veteran was provided notice of that decision and notice of his procedural and appellate rights in a letter sent to his Alabama address of record also in September 1957. The Veteran did not enter a notice of disagreement with this rating decision within one year of receipt of notice of the decision, and the decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2012). The Veteran needed only to express disagreement with the rating decision within one year to obtain appellate review. See 38 C.F.R. § 19.2 (1956). The December 1957 letter does not evince any awareness of the denial at all. The Veteran sent a December 1957 letter to his Congressman asking for any information about his pension. He indicated that he had started school in Ohio at that time. The Congressman's office responded to him that his information was not on file and that he should contact VA and forwarded the Veteran's letter to VA. While this letter to the Congressman was eventually received at the RO, as required to file a notice of disagreement, it still did not express disagreement with the denial of service connection for urethral stricture, as required to constitute a notice of disagreement. See 38 C.F.R. § 20.201. The Veteran sent a May 1958 letter to the RO, from another address in Alabama, asking for information as to why his claim had been denied. The RO responded in a May 1958 letter to the new Alabama address that his claim was denied because the disorder was found to be from natural causes and not a disability under the law. This letter of inquiry, likewise, did not express disagreement with the denial of service connection for urethral stricture, as required to constitute a notice of disagreement. See 38 C.F.R. § 20.201. By May 1958, the Veteran was clearly aware that his claim had been denied and asked for the reason. Even when read liberally, the December 1957 and May 1958 statements do not express disagreement with the September 1957 rating decision denial of service connection for urethral stricture. There is no explanation as to how he could have learned that his claim was denied other than the original September 1957 notice letter reaching him. There are no other communications received during the one year window. No evidence was received within one year of the September 1957 notice letter. The September 1957 decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The next communication from the Veteran following the final rating decision issued in September 1957 was a claim to reopen service connection that was received in November 1958. Reopening of the claim was denied in a March 1960 rating decision, which denied reopening of service connection for urethral stricture, specifically noting the congenital nature of the disorder and that there was no evidence of service incurrence or aggravation. The Veteran was provided notice of that decision and notice of his procedural and appellate rights in a letter sent to his address of record also in March 1960. The Veteran did not contact VA again until 1997. The March 1960 decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "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. The 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. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). 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). The Veteran's claim for service connection for urethral stricture was denied in September 1957 because the disability was found to be congenital, thus to have preexisted service and not been aggravated by service. The March 1960 rating decision stated that the evidence did not warrant any change in the previous determination, specifically noting the congenital nature of the disorder and no evidence of incurrence or aggravation. Thus, evidence that new to the claims file must be received which has some tendency to show in-service incurrence or aggravation of preexisting (congenital) urethral stricture. Importantly, the existence of the disability and continuity of symptoms since service were not the basis of the denial. Materiality has two parts, first, that the new evidence pertains to the reasons for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the VCAA. Id., at 118. Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The rule of Justus does not require VA to consider the patently incredible to be credible. Duran v. Brown, 7 Vet. App. 216, 220 (1994); see also Hickson v. Shinseki, 23 Vet. App. 394 (2010). Furthermore, the Board must not assume credibility of evidence "when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." See King v. Brown, 5 Vet.App. 19, 21 (1992). The evidence received since the last prior, final denial consists of two components, the Veteran's VA treatment records and private treatment from Dr. D., his private urologist. The Veteran's VA treatment records were obtained in 1997 in association with a pension claim. His more recent VA treatment records were obtained again in 2007 after he filed the instant petition to reopen. These records mention that the Veteran had a forty year history of urethral stricture and that he was first seen for the problem while in the military. The comments were a part of the prior medical history. Such prior medical history information comes from the patient's account of his symptoms. There is no indication that the doctors did any more than record the Veteran's statements. Mere transcription of the lay history provided by the Veteran does not become competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The VA treatment records do not contain any independent medical assessment of in-service incurrence or aggravation of a urethral stricture. Furthermore, the prior medical histories are repetitive of the Veteran's statement in support of his original claim in October 1956. He contended at that time that he first received treatment during service and that he had ongoing problems. The Board finds that, although new, the Veteran's comments in the VA treatment records are duplicative of his original claim. Thus, although his VA treatment records from 1996 to the present are new to the claims file, they are not material because they either fail to address the in-service incurrence/aggravation question or are cumulative of evidence previously considered by the RO. The Veteran has also submitted copies of treatment records from a Dr. D. dated from 1985 to 2007. Aside from noting a long history of urethral stricture, these records do not address anything regarding onset or aggravation of the disorder. A February 26, 2007 note states that the Veteran provided a history of stricture since 1955. The Veteran stated that he had been in the Air Force and "evidently had urethritis from possible GC." He described his course of treatment and that he was ultimately discharged for the disorder. He asked Dr. D. to write a letter regarding the stricture. The doctor informed the Veteran that he could only relate that stricture disease is long term and can be a problem for a lifetime, but could not attest to any treatment or causes back in the 1950s. As with the VA treatment records, the Veteran's lay history was part of the record previously considered by the RO. That Dr. D. wrote it down did not convert it into medical evidence. See LeShore. The Board finds that the records are new, but either fail to address the in-service incurrence/aggravation question, are not competent, or are cumulative of evidence previously considered by the RO. The Veteran has contended in his January 2008 Notice of Disagreement and October 2008 VA Form 9 that he had provided new and material evidence in the form of a February 26, 2007 letter from Dr. D. to the effect that stricture disease can be caused by inflammatory disease, raising the possibility that stricture disease can be caused by other than "natural causes" as stated in previous denial letters. The February 26, 2007 treatment note does not discuss the possible etiologies of urethral stricture. The content of the note is described above. The Board has found that the February 26, 2007 note does not constitute material evidence. The Board observes that laypersons are generally competent to report what they have been told by a medical professional. See generally Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). This is not, however, what has happened here. The Veteran does not state that his doctor told him that urethral stricture may be caused by inflammatory disease. He instead argues that evidence associated with the file states that. The Board finds that this is not lay evidence, but a contention from the record. The Board does not know how the Veteran arrived at this contention, but it is not based on the evidence of record. In light of the foregoing, the Board finds that the additional evidence associated with the claims file since the prior, final denial is new, but not material. The Board finds further that the Veteran's lay statements are cumulative of the statements made in support of his original claim and are not new. In the absence of evidence which is both new and material, the Board concludes that reopening is not warranted. See 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been received, the appeal to reopen service connection for urethral stricture is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs