Citation Nr: 1309723 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-08 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a hiatal hernia. 3. Entitlement to an effective date prior to April 15, 2008, for the assignment of a 100 percent disability evaluation for prostate cancer. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from December 1954 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2012, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. A written transcript of this hearing has been prepared and electronically associated with the Veteran's claims file. 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. VA received notification from the Veteran during his November 2012 hearing that he wanted to withdraw his request to reopen his claim of entitlement to service connection for an eye condition. The Board received this request prior to the promulgation of a decision. 2. The June 2001 rating decision declining to reopen the Veteran's claim of entitlement to service connection for a hiatal hernia was not appealed and is, therefore, final. 3. Evidence received since the June 2001 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a hiatal hernia, and as such, is not material. 4. The record does not contain a formal or informal claim for a higher disability evaluation for prostate cancer prior to April 15, 2009 and there was no evidence associated with the claims file, either physically or constructively, within one year of the last final rating decision of June 2001. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of whether new and material has been submitted to reopen a claim of entitlement to service connection for an eye condition have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The June 2001 rating decision declining to reopen the Veteran's claim of entitlement to service connection for a hiatal hernia is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 3. New and material evidence has not been received and the claim of entitlement to service connection for a hiatal hernia remains closed. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 4. The criteria for establishing entitlement to an effective date prior to April 15, 2008, for the assignment of a 100 percent disability evaluation for prostate cancer have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the veteran with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the notice letter provided to the Veteran in March 2008 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as he was informed about what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. As for the Veteran's claim of entitlement to an earlier effective date, an April 2009 letter fully informed the Veteran on how to substantiate this claim. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination for his prostate cancer in April 2010, and VA has obtained a copy of this report. Private treatment records submitted by the Veteran have also been obtained and incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Withdrawal A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202 , 20.204(b). Withdrawal may be made by the appellant or by his authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c). In March 2010, the Veteran submitted a VA Form 9, Appeal to Board of Veterans' Appeals, perfecting his appeal as to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disability, as identified in the October 2009 Statement of the Case. At his November 2012 hearing before the Board, the Veteran stated that he was withdrawing the appeal as to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disability. The Board finds that the Veteran's statement indicating his intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of the Substantive Appeal. Tomlin v. Brown, 5 Vet. App. 355 (1993) (a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a written Notice of Disagreement within the meaning of 38 U.S.C. § 7105 ). As the Veteran has withdrawn his appeal as to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disability, there remain no allegations of errors of fact or law for appellate consideration concerning this issue. The Board therefore has no jurisdiction to review the issue. Accordingly, the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disability is dismissed. New and Material Evidence Relevant Laws and Regulations Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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, 9 Vet. App. at 273. 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). Hiatal Hernia The Veteran was originally denied service connection for a hiatal hernia in a June 1980 rating decision. This claim was denied because there was no evidence of a hiatal hernia or any ulcer condition. The last final denial of the Veteran's request to reopen this claim is a June 2001 rating decision. The RO noted that while the Veteran was noted to have a hiatal hernia in July 1998, this was not material to the issue at hand as there was still no evidence of a chronic disability of hiatal hernia at the time of the Veteran's release from military service. As such, for the evidence to be material in this case, it must address this unestablished fact. According to an April 2009 private treatment record, the Veteran had a huge hiatal hernia with approximately two thirds of the stomach above the diaphragm. However, this evidence is not material. The Veteran's claim was denied in June 2001 not because there was no evidence of a current hiatal hernia, but because there was no evidence of a chronic hernia related to military service. The April 2009 record fails to address this issue. Furthermore, a September 1998 diagnosis of a large hiatal hernia was already of record at the time of the June 2001 final denial. The Veteran has also asserted in several statements that he was diagnosed with a hiatal hernia during military service. However, this information is not new. A review of the Veteran's service treatment records reflect that he reported a previous diagnosis of a hiatal hernia in his report of medical history associated with his February 1979 separation examination. However, the Veteran denied any severe problems at that moment, and a May 1980 VA examiner concluded that the Veteran did not have a hiatal hernia and that the Veteran's duodenal ulcer had healed. The Veteran's claim was subsequently denied. Since all of this evidence was of record at the time of the Veteran's previous denials, any current assertion of in-service treatment is not new. To date, the Veteran has failed to provide VA with any evidence to demonstrate that he suffered from a chronic hiatal hernia at the time of separation from active duty or that his more recently diagnosed hiatal hernia manifested during, or as a result of, active military service. The Board recognizes that the Veteran testified to some gastrointestinal symptomatology since service during his November 2012 hearing. Specifically, the Veteran testified that he continued to experience symptoms following separation from active duty, but that he managed this through lifestyle changes. A review of the May 1980 VA examination report notes that the Veteran continued to have occasional epigastric pain and gaseous distention since his separation from active duty. The Veteran also noted in a June 2000 statement that he had been advised on methods of reducing his symptoms when his stomach was upset. The Veteran's November 2012 testimony is not new, since the fact that he continued to experience some gastrointestinal symptomatology after his separation from active duty was well-established at the time of the last final denial. Therefore, evidence received since the June 2001 rating decision fails to raise a reasonable possibility of substantiating the Veteran's claim. See 38 C.F.R. § 3.156(a). Furthermore, there is no evidence of any additional evidence pertinent to this issue having been associated with the Veteran's claims file, either physically or constructively, within one year of the June 2001 rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the June 2001 rating decision became final based on the evidence then of record. Where new and material evidence consists of service department records not previously associated with the claims file at the time of the prior final denial, the prior claim is to be reconsidered, not reopened. See 38 C.F.R. § 3.156(c). However, a review of the claims file reflects that the Veteran's service treatment records were already of record at the time of the June 1980 and June 2001 rating decisions. As such, 38 C.F.R. § 3.156(c) is not applicable in this case. As a final matter, the Board has considered the holding of the Court in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). As already noted, the Court explained that the Board should focus on whether the newly submitted evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. However, no evidence has been submitted to demonstrate that the Veteran had a hiatal hernia at the time of separation from active duty or that his current symptoms are related to military service. In fact, the Veteran confirmed that no doctor had ever told him of such a relationship during his November 2012 hearing. As such, newly submitted evidence fails to trigger VA's duty to assist the Veteran by providing him a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In summary, the facts that the Veteran was treated for a hiatal hernia during military service, and that he was diagnosed with a hiatal hernia years after his separation from military service, were well-established at the time of the last final denial of June 2001. The record also reflected continuing gastrointestinal symptomatology as early as May 1980. The Veteran's claim was denied because there was no evidence of record linking his current hiatal hernia to military service. To date, VA has received no new evidence addressing this issue. As such, the claim of entitlement to service connection for a hiatal hernia is not reopened. Earlier Effective Date for a 100 Percent Rating for Prostate Cancer The Veteran was originally granted service connection for prostate cancer in a May 1997 rating decision. A noncompensable (0 percent) disability evaluation was assigned, effective as of November 7, 1996. The Veteran did not appeal the assigned rating and it became final. The Veteran subsequently filed a claim for a higher rating, and in a June 2001 rating decision, his disability evaluation was increased to 10 percent, effective as of June 8, 2000. VA most recently received a claim from the Veteran on April 15, 2009, seeking a higher disability evaluation for his service-connected prostate cancer. In a February 2010 rating decision, the Veteran's disability evaluation was increased to 100 percent, effective as of April 15, 2008 - one year prior to the receipt of the Veteran's claim for a higher rating. See 38 U.S.C.A. § 5110(b)(2)(B) (stating that the effective date of an award that is fully developed at the date of a claim's submittal shall not be earlier than the date that is one year before the date of receipt of this claim). In April 2010, VA received a notice of disagreement from the Veteran in which he asserted that the 100 percent disability evaluation should be effective as of November 1998. The effective date of April 15, 2009, was continued in a November 2010 statement of the case, which the Veteran appealed to the Board in February 2011. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. Under 38 C.F.R. § 3.157, the date of VA outpatient treatment will be accepted as the date of receipt of the claim, but only when such report relates to an examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such treatment. See Servello v. Derwinski, 3 Vet. App. 196, 200 (1992). In the present case, the record reflects that a 10 percent disability evaluation was assigned in a June 2001 rating decision, effective as of June 8, 2000. The Veteran did not appeal this decision and the assigned rating became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. There is no evidence of VA treatment for prostate cancer subsequent to June 8, 2000, and prior to April 15, 2008. While the Veteran has submitted evidence of private treatment for prostate cancer prior to April 15, 2008, this evidence was not provided to VA until June 2009. Since this is not VA medical evidence, it is not within the constructive possession of VA. See generally Bell v. Derwinski, 2 Vet App. 611, 613 (1992) (holding that records generated by VA facilities are in the constructive possession of VA, regardless of whether those records are physically in the file). The evidence of record also reflects that the Veteran failed to submit any other evidence or statement prior to April 15, 2009, that could be interpreted as a claim for a higher disability evaluation for prostate cancer. As already noted, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Nothing of record can reasonably be construed as a claim prior to April 15, 2009. An effective date prior to April 15, 2008, one year prior to the receipt of the Veteran's claim, is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an effective date prior to April 15, 2008, for the assignment of a 100 percent disability evaluation for prostate cancer must be denied. ORDER The claim of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye condition is dismissed. New and material evidence having not been received, the Veteran's claim of entitlement to service connection for a hiatal hernia is not reopened. The claim of entitlement to an effective date prior to April 15, 2008, for the assignment of a 100 percent disability evaluation for prostate cancer is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs