Citation Nr: 1307972 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-40 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bladder cancer, to include as due to herbicide exposure. 2. Entitlement to service connection for degenerative disc disease of the cervical spine, to include as due to herbicide exposure. 3. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from March 1960 to February 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In March 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In a March 2011 statement, the appellant filed a claim for service connection PTSD, mood disorder, anxiety disorder and depression. In another March 2011 statement, the appellant indicated that his service-connected peripheral neuropathy disabilities had worsened. He stated that "due to this condition I can no longer get any small positions of employment." He asked VA to consider the recurring medical conditions and help him with a rate increase. The Board construes the appellant's March 2011 statement as a claim for increased ratings for his service-connected peripheral neuropathy disabilities and entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). The issues of entitlement to service connection for an acquired psychiatric disability, to include PTSD, a mood disorder, an anxiety disorder and depression; entitlement to an increased rating for service-connected diabetes mellitus with bilateral foot peripheral neuropathy; entitlement to increased ratings for service-connected peripheral neuropathy of the left and right lower and upper extremities; and entitlement to a TDIU 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. FINDINGS OF FACT 1. An April 2005 rating decision denied the appellant's claim of entitlement to service connection for bladder cancer. 2. The appellant appealed the rating decision, but withdrew the appeal in July 2005. 3. Evidence submitted subsequent to the April 2005 rating decision is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2005 rating decision is final as to the claim of entitlement to service connection for bladder cancer. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has been received since the April 2005 rating decision to reopen the claim of entitlement to service connection for bladder cancer. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant'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, each piece of evidence of record. 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 appellant 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 appellant). 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) The petition to reopen the previously disallowed claim for service connection has been granted, as discussed below. As such, the Board finds that any error related to the Veterans Claims Assistance Action (VCAA) on that petition to reopen is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Accordingly, the Board may proceed with a decision on the appellant's petition to reopen. II. Legal Criteria New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. "New" evidence is defined as 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. at 120. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology, limited to chronic disability identified at 38 C.F.R. § 3.309(a), can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Certain chronic disabilities, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Id.; 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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. Id., 38 C.F.R. § 3.307(d)(6)(iii). If a Veteran 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 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus (also known as Type II diabetes mellitus or adult-onset diabetes mellitus), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 81,332 (Dec. 27, 2010). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a regulatory presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. III. Analysis The appellant contends that he is entitled to service connection for bladder cancer, to include due to exposure to Agent Orange in Vietnam. For the reasons that follow, the Board finds that new and material evidence has been received to reopen the appellant's claim. In an April 2005 rating decision, the RO denied entitlement to service connection for bladder cancer, to include as a result of exposure to herbicides. The RO found that there was no basis to establish service connection for bladder cancer. The RO noted that the appellant did not happen in military service, nor was it aggravated or caused by service. The RO found that the required service in Vietnam was not shown, nor was there evidence of exposure to herbicides in any other period of service. The RO specifically found that the appellant did not have bladder cancer as a result of exposure to herbicides or exposure to asbestos. The appellant filed a notice of disagreement with the rating decision in June 2005. However, in a July 2005 statement he withdrew the appeal. Thus, the April 2005 rating decision became final. 38 U.S.C.A. § 7105. The evidence of record at the time of the previous final denial in July 2005 included the appellant's service treatment records, private treatment records indicating he was diagnosed with bladder cancer in October 2004, and statements from the appellant. The evidence added to the claims file since the previous final denial includes VA treatment records, a November 2004 VA Agent Orange examination report, statements from the appellant, buddy statements, an August 2010 VA examination report and a March 2011 private opinion. At the time of the previous final denial, the evidence of record did not demonstrate that the appellant was exposed to herbicides in service. The appellant's service records indicate that he served on the U.S.S. Wiseman, which was in Vietnamese waters in early 1962. The appellant asserted that his ship went into the Saigon River and made port at Saigon for several days. Since the last final denial, the appellant submitted several buddy statements in June 2005 confirming his account that the ship docked in Saigon and they went ashore. The RO found the evidence was credible and accepted the appellant's account that he served within the Republic of Vietnam. Lay witnesses are competent to report that a ship docked in Vietnam at the time the appellant was stationed on the ship. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Thus, the buddy statements are presumed to be credible. Consequently, since the last final rating decision, the appellant has submitted evidence showing that he served in Vietnam and is presumed to have been exposed to herbicides in service. As the evidence was not previously of record it is new. The Board also finds that the evidence is material as it relates to an unestablished fact necessary to prove the appellant's claim. The appellant has asserted that he has bladder cancer as a result of exposure to Agent Orange. See March 2009 claim. As noted above, 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. at 120. As the evidence of record at the time of the last final rating decision in April 2005 did not show that he served in Vietnam and is presumed to have been exposed to herbicides, the new evidence relates to a previously unproven element of the claim. Consequently, it is new and material. The evidence added to the claims file since the last previous denial in April 2005 includes a November 2004 VA Agent Orange examination report. The report notes that the appellant had bladder cancer. It states: "health conditions related to Agent Orange: Bladder Cancer." The report noted that the examiner encouraged the appellant to file a claim with the RO regarding his recent diagnosis of bladder cancer. The report indicates the appellant's bladder cancer may be related to his presumed exposure to Agent Orange. Although dated prior to the April 2005 claim, the November 2004 examination report was not of record at the time of the April 2005 rating decision. Thus, it is new. As the examination report indicates the appellant's bladder cancer is related to exposure to Agent Orange in service, it relates to a previously unproven element of the claim and raises a reasonable possibility of substantiating the claim. The evidence added to the claims file since the last final rating decision also includes a March 2011 opinion statement from N.B., a nurse practitioner. In the statement, N.B. stated that the appellant continued to have problems adversely affecting his life. She stated that "his problems appear to be an ongoing chronic debilitating process possibly related to Agent Orange contamination." Although the statement does not specify what chronic problems N.B. is referring to, as one of the appellant's medical problems was bladder cancer, the statement indicates that the appellant's bladder cancer may be related to Agent Orange. The statement is new as it post-dates the last final rating decision. It is also material, as it relates to a previously unproven element of the claim. Based on the above evidence, the Board finds that since the last final denial of the appellant's claim for service connection for bladder cancer, VA has received new and material evidence. The new evidence includes buddy statements confirming the appellant's account that his ship was docked in Vietnam, and the November 2004 VA Agent Orange examination and the March 2011 private opinion which indicate that the appellant's bladder cancer may be related to exposure to Agent Orange. As the evidence relates to a previously unproven element of the appellant's claim, namely that his bladder cancer is related to exposure to Agent Orange in service, and the credibility of the evidence if presumed for purposes of reopening, the Board finds that the evidence is new and material. See 38 C.F.R. § 3.156(a) (2012). As new and material evidence has been received, the claim for service connection for bladder cancer is reopened. ORDER The claim for entitlement to service connection for bladder cancer is reopened, and the appeal is allowed to this extent. REMAND Having reopened the appellant's claim for entitlement to service connection for a bladder cancer, the Board must now determine whether the reopened claim may be granted on the merits. However, further development of the record is needed prior to appellate consideration of the reopened claim. In Shade v. Shinseki, the Court noted that "38 C.F.R. § 3.159(c)(4)(iii) guarantees that, once new and material evidence has been presented as to an unestablished fact from the previously denied claim, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted." Shade, 24 Vet. App. at 121. VA must provide a VA examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for bladder cancer. Therefore, bladder cancer may not be presumed to be related to herbicide exposure. See 38 C.F.R. § 3.309(e) (2012). However, service connection may still be established on a direct basis, to include as due to herbicide exposure in service. For purposes of service connection, the record reflects diagnoses for bladder cancer and the Board presumes that the appellant was exposed to herbicides during service. Although the appellant was afforded a VA examination in August 2010, the examiner did not address whether the appellant's bladder cancer was related to his exposure to Agent Orange. The appellant should be afforded an examination to determine whether the appellant's bladder cancer is related to exposure to herbicides during service. Additionally, the August 2010 VA examiner found that he could not resolve the issue of whether the appellant's bladder cancer was related to exposure to asbestos without resort to mere speculation. Thus, the new VA examination should also address whether the appellant's bladder cancer is related to exposure to asbestos. In regard to the appellant's claims for degenerative disc disease of the cervical and lumbar spines, the Board finds that a VA examination is necessary prior to adjudication of the claims. The appellant has current diagnoses of cervical spine and lumbar spine disabilities. At the March 2011 hearing, the appellant stated that he used to do all kinds of heavy lifting as a normal routine in service. (March 2011 Board Hearing Transcript (Tr.) at p. 4) The appellant is competent to report symptoms capable of lay observation, such as heavy lifting in service. The appellant's statement indicates the appellant's lumbar and cervical spine disabilities may be associated with in-service heavy lifting. In the March 2011 letter, N.B. stated that the appellant had continued problems which appeared to be an ongoing chronic debilitating process, possibly related to Agent Orange contamination. In a March 2011 letter, the appellant stated that he had neuropathy and back pain. He stated his hometown medical person was aware of his falling, the neuropathy and the peripheral artery disease and he had asked her to submit a statement. As the appellant indicated that the conditions N.B. referred to included his back pain, the statement indicates the appellant's back and spine disabilities may be related to exposure to Agent Orange in service. Consequently, a VA examination is necessary to determine whether the appellant's cervical and lumbar spine disabilities are related to service, to include exposure to Agent Orange. Finally, the VA treatment records in the file only date to March 2011. As the appellant receives treatment at VA, more recent VA treatment records may be pertinent to the appellant's claim. Consequently, the Board requests the appellant's complete VA treatment records from March 2011 to present. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the appellant's VA treatment records from March 2011 to present. If no records are available, the claims folder must indicate this fact. 2. After completion of step 1, provide the claim file to a VA clinician with appropriate expertise to provide an opinion as to whether it is at least as likely as not (50 percent probability) that the appellant's bladder cancer was etiologically related to service, to include due to exposure to herbicides and/or asbestos. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the VA clinician determines that an examination is necessary, such should be accomplished. 3. After completion of Step 1, schedule the appellant for a VA examination to determine the following: (i) Identify all cervical spine and lumbar spine disabilities, to include degenerative disc disease. (ii) Provide an opinion as to whether it is at least as likely as not (50 percent probability) that the appellant has a cervical spine disability, to include degenerative disc disease, that is etiologically related service, to include due to exposure to herbicides. (iii) Provide an opinion as to whether it is at least as likely as not (50 percent probability) that the appellant has a lumbar spine disability, to include degenerative disc disease, that is etiologically related service, to include due to exposure to herbicides. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 4. Thereafter, readjudicate the issues on appeal of entitlement to service connection for bladder cancer, entitlement to service connection for degenerative disc disease of the cervical spine, and entitlement to service connection for degenerative disc disease of the lumbar spine, to include as due to herbicide exposure. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs