Citation Nr: 1309244 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-37 383 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for residuals of a right cerebellar infarction (stroke), including headaches and dizziness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to June 1980. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2010 rating decision in which the RO denied a petition to reopen a claim for service connection for right cerebellar infarction (stroke) including headaches and dizziness In March 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2010. In June 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the Veteran requested, and the undersigned granted, a 60-day abeyance period for submission of additional evidence in support of the claim. The Veteran has submitted additional evidence to the Board, having waived initial RO consideration of the evidence on the record at the hearing. The Board accepts the additionally-received evidence for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304 (2012). In February 2013, the undersigned granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. In April 2003, the RO declined to reopen a previously-denied claim for service connection for post operative residuals of a right cerebellar infarction. Although notified of the denial in a letter dated that same month, the Veteran did not initiate an appeal, or submit new and material evidence within the one-year period following notification of the April 2003 denial. 3. Additional evidence received since the April 2003 rating decision is cumulative or redundant of the evidence at the time of the prior final denial and/or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for residuals of a right cerebellar infarction (stroke), including headaches and dizziness. CONCLUSIONS OF LAW 1. The April 2003 rating decision in which the RO declined to reopen the previously denied claim for service connection residuals of a right cerebellar infarction (stroke) including headaches and dizziness is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for residuals of a right cerebellar infarction (stroke) including headaches and dizziness. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations VA has a duty to notify and assist claimants in substantiating a claim 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). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). In the context of a petition to reopen a final disallowed claim, VA must notify a claimant of the evidence and information that is necessary to reopen a previously denied claim, and must notify the claimant of the evidence and information that is necessary to establish entitlement to service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). In October 2009, the RO provided a notice that met the above requirements. The notice advised the Veteran of all criteria to substantiate a claim for service connection and explained the Veteran's and VA's respective responsibilities to obtain relevant evidence. The notice advised the Veteran of the reasons for the previous denials and the requirements for new and material evidence. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records identified by the Veteran as potentially new and material to the matter on appeal. The dates and nature of evidence received since the last final disallowance will be discussed in detail below. Also of record and considered in connection with the appeal is the transcript of the Veteran's June 2011 Board hearing, along with various written statements provided by the Veteran, and by his representative on his behalf. During the June 2011 hearing, the undersigned solicited information regarding the Veteran's disability and his contentions regarding a relationship to symptoms and events in service. The undersigned also explained the reasons for the previous denials, suggested the type of evidence that would be new and material, and ordered that the appeal remain open for 60 days for the Veteran to obtain that evidence. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. In summary, the notice and assistance duties have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II Analysis. The Veteran served as a U.S. Navy storekeeper. He contends that symptoms of dizziness and headache experienced in service were initial manifestations of a disorder leading to an October 1981 right cerebella infarction. In an August 2010 substantive appeal, the Veteran additionally contended that he had a congenital heart defect, diagnosed as a patent foramen ovale (PFO), that should have been detected on entry into active duty and contributed to the stroke. 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, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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). Certain chronic diseases, such as brain hemorrhage or thrombosis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In March 1986, the RO denied service connection for what was then characterized headaches, dizziness, and residuals of a stroke on the basis that the claimed conditions were incurred in or aggravated by service. Evidence considered at that time consisted of service treatment records, private hospital and physician's reports of inpatient surgical treatment for a stroke in October 1981, letters from private physicians regarding post-stroke assessment and therapy, and the results of a January 1986 VA examination. The report of the Veteran's April 1976 enlistment physical examination and June 1976 submarine duty physical examination are silent for any history, symptoms, or observations of abnormalities of the cardiovascular system. In December 1977, the Veteran sought treatment at a shipboard sick bay for headaches, dizziness, and generalized myalgia. The examiner noted the Veteran's report of a minor accident the previous evening causing a small laceration on the lower lip but no other indications of trauma. The examiner noted a heavy alcohol breath odor, diagnosed a hangover, and prescribed aspirin. The Veteran was seen four times in the next 30 days for other complaints with no further headaches or dizzy spells. In dental treatment screening in March and August 1978, the Veteran denied any recurrent dizzy spells. In connection with a June 1980 discharge physical examination, the Veteran denied any frequent or severe headaches, dizziness, or fainting spells or any heart trouble. Blood pressure was measured as 100/60 mmHg. The examiner noted no cardiovascular abnormalities. The RO also considered reports of a private hospital admission and subsequent rehabilitation treatment dated in December 1981 and April 1982. The attending clinicians noted that the Veteran received treatment at another hospital in October 1981 after being found on the floor experiencing headaches, nausea, vomiting, and dizziness. After imaging studies showed dilated ventricles and a right cerebellar mass, the Veteran underwent a posterior fossa crainiotomy and a right hemisphere cerebella resection to remove the infarction and necrotic tissue. In a January 1984 VA examination, the Veteran reported that he sustained a second stroke in 1983. A physician noted residuals of right side ataxia and left sided parathesias with loss of control of the bowels and bladder. In April 1984, the Veteran's residuals of the strokes were only mild right-sided ataxia. Other deficits of diplopia, gait difficulty, and transiently dilated left pupil were of unknown origin. None of the examiners or physicians noted any history of symptoms or diagnoses associated with military service, and one physician noted that the stroke was idiopathic. The Veteran did not submit new and material evidence within one year or express timely disagreement with the March 2006 determination. The RO received the Veteran's petition to reopen the claim in October 2001. The Veteran contended that the episode of headache and dizziness in December 1977 was an early sign of an abnormality that led to the stroke and that the symptoms were misinterpreted as a hangover. New evidence consisted of a November 2002 from a medical consultant to the Veteran's representative's veteran's service organization (VSO) and the report of a March 2003 VA examination. The VSO consultant noted a review of the claims file and briefly summarized the record of the December 1977 symptoms and the 1981 stroke. The consultant physician concluded that the symptoms were the same in 1977 and 1981 and thus the symptoms in service were the first signs of a stroke. The consultant did not discuss any other service treatment records. The VA examiner noted a review of the claims folder and discussed the 1977 episode in service and the 1981 stroke symptoms and surgery. The physician concluded that the Veteran clearly experienced a stroke in 1981 but that the etiology was unclear and could include vascular defects or an infarction followed by infection. The physician also noted the Veteran's statements that he was "fine" after the 1977 episode and held a steady job after service with no neurological problems between 1977 and 1981. The VA physician concluded that the onset of cerebella syndrome leading to the stroke was not in 1977 but rather in 1981 when he presented symptoms that led to the discovery of the infarction. In April 2003, the RO declined to reopen the claim on the basis that the evidence continued to show that a stroke was not incurred in or aggravated during service. Although the Veteran was notified of the denial and his appellate rights in letter dated later in April 2003, the RO did not initiate an appeal or submit additional evidence during the one-year period after notification of the denial. As such, the RO's April 2003 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran filed the current request to reopen the previously denied claim in September 2009. For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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 evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Since April 2003, the following evidence has been added to the claims file: reports of treatment by an attending physician and the hospital for the initial treatment for symptoms in October 1981; an October 2009 statement from the Veteran's spouse; a December 2009 written statement from the Veteran; letters or clinical reports from six private physicians; records of inpatient treatment at a private hospital in 2009; and the transcript of the Veteran's June 2011 Board hearing. The Board finds that the received since the last final disallowance of the claim is new in the sense that it had not been previously considered. However, this evidence is either cumulative of that previously considered and/or does not address a connection between the Veteran's service and his stroke, the reason for the previous denial of the claim. Although all medical records refer to the Veteran's history of previous strokes, records reporting diagnosis and treatment for cataracts, prostatitis, and rectal bleeding are not relevant to the stroke or its origin as they are different symptoms of abnormalities in different physical systems. Records of hospital treatment in October 1981 and the spouse's statement are substantially cumulative as they further describe the Veteran's symptoms at that time with the additional information that the Veteran was initially suspected of a viral respiratory infection prior to rapid deterioration into a coma. The Veteran's statement is not material because it provides only a description of his functional disabilities since the stroke. Records of hospitalization in 2009 showed that the Veteran experienced a transient ischemic attack (TIA) that resolved with no new residuals. The evidence is not material because there are no clinical comments or opinions on a possible relationship of the TIA or any previous strokes to events and symptoms in service. One private physician in October 2011 noted that the Veteran's current problems with balance and loss of sensation in the right are residuals of the stroke but the physician did not comment on the etiology. In an April 2010 letter, a private cardiologist noted that the Veteran had a history of multiple strokes and a patent foramen ovale (PFO). The Veteran had a history of chest discomfort and an abnormal stress test but a cardiac catheterization was normal. The physician noted that one third of the population has a PFO and that it would not have been detected at a young age unless found in an echocardiogram. The physician did not provide an opinion on the timing of the development of the PFO and did not associate the disorder with the history of stroke or any aspect of service. None of this evidence is material because it does not address a relationship of the stroke, TIA, PFO or residuals to the symptoms experienced in service. The Board also finds that the Veteran's June 2011 hearing testimony, provides no basis to reopen the claim, as this evidence likewise includes nothing to support a finding that his stroke or its residuals occurred during or are otherwise medically-related to service. The Veteran testified stated that his cardiologist told him that the PFO was present in childhood. The Veteran acknowledged that he was not told that the defect was associated with the history of stroke. The Veteran stated that he began having regular headaches in service in 1979 that usually resolved by the next morning. He denied any head trauma. He stated that he was careful to seek immediate attention when he experienced any headaches or dizziness. He acknowledged that no medical provider had told him that the first manifestation of symptoms leading to his strokes was his headaches in service. The undersigned advised that an opinion on this element of service connection would be helpful to support his claim ,and held the record open for 60 days. Subsequently, A statement by private physician was subsequently received; however, as indicated above, this statement mentions only the Veteran's current problems. Thus, record still includes no competent medical evidence or opinion that actually supports the claim. Regarding lay assertions in general, the Board points out that a layperson is certainly competent to describe factual matters of which he or she has first- hand knowledge. See, e.g., Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465, 470 1994). However, matters of medical etiology of a complex disabilities that cannot be established by mere observation-such as the underlying right cerebellar infarction (stroke) at issue in the current appeal-are matters within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Here, neither the Veteran, his wife, nor his representative is competent to render a probative (i.e., persuasive) opinion on a medical matter upon which this claim turns, their lay assertions as to the etiology of the Veteran's stroke and its residuals have no probative value. See Bostain v. West, 11 Vet. App. 124, 127 (1998)); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Therefore, where, as here, resolution of the appeal turns on a medical matter that cannot be established by lay evidence, unsupported lay statements, alone, even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211, 214 (1993). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for residuals of a right cerebellar infarction (stroke), including headaches and dizziness are not met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been received, the request to reopen a claim for service connection for residuals of a right cerebellar infarction (stroke) including headaches and dizziness is denied ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs