Citation Nr: 1311804 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 10-43 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for prostate disorder. 2. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for varicose veins. 3. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for pleurisy (previously claimed as lung disorder). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from January 1953 to December 1954. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure 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. The weight of evidence is against a finding that the Veteran currently has a prostate condition which either began during, or was otherwise caused by, his military service. 2. The RO denied the Veteran's claim of entitlement to service connection for varicose veins in January 1992 and May 1994 rating decisions. The Veteran withdrew his appeal of those decisions in 1996. 3. Evidence obtained since the time of the May 1994 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran's varicose veins. 4. The RO denied the Veteran's claim of entitlement to service connection for pleurisy in a January 1992 rating decision. The Veteran was notified of the decision, but did not file new evidence or a notice of disagreement within one year. 5. Evidence obtained since the time of the January 1992 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran's pleurisy. CONCLUSIONS OF LAW 1. Criteria for service connection for prostate condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The January 1992 and May 1994 rating decisions which denied entitlement to service connection for the Veteran's varicose veins are final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105, (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.204, 20.302, 20.1103 (2012). 3. The January 1992 rating decision which denied entitlement to service connection for the Veteran's pleurisy is final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105, 5108 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the Veteran's service treatment records were lost in a fire-related incident. The Board is aware that when service treatment records are unavailable through no fault of the Veteran it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinksi, 1 Vet. App. 365, 367 (1991). In an August 2009 letter to the Veteran he was informed that VA did not have his service treatment records because they were destroyed in a fire in July 1973. In February 2012 the Veteran was sent a letter which outlined potential alternative evidence for service treatment records. In September 2008 the Veteran filed a claim seeking service connection for a prostate condition, varicose veins, and pleurisy. In a February 2012 decision the Board remanded the Veteran's claim in order to attempt to find the Veteran's social security (SSA) records and associate them with the file. In March 2012 the SSA National Records Center indicated that no records were available for the Veteran. In a March 2012 letter the RO informed the Veteran of the unavailability of his SSA records and requested the Veteran submit any records in his possession. The Veteran submitted a summary of his social security benefits from March 2012. Unfortunately, this summary only indicates the amount of benefits the Veteran receives, but does not indicate on what basis or disability the Veteran receives benefits. As such, the Board finds the RO complied with the remand instructions to obtain the Veteran's SSA records, unfortunately these records no longer exist. Because the remand instructions were complied with the Board may adjudicate this claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board will first address the Veteran's claim for service connection of a prostate condition. Prostate Condition In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is currently seeking service connection for a prostate condition. The Veteran served in active duty from January 1953 through December 1954. As discussed above, the Veteran's service treatment records are unfortunately unavailable for review. Post-service treatment records have been reviewed, and the earliest mention of a prostate condition in the evidence of record is from a November 1999 VA treatment record noting the Veteran had an "enlarged and irregular prostate" which protrudes onto his bladder. VA treatment records after that point consistently noted the Veteran's prostate was markedly enlarged. A record from May 2006 indicated that the Veteran had experienced a benign enlarged prostate since as early as 1992. This report indicated the Veteran's PSA (prostate-specific antigen) has been as high as 15 since 1992, suggesting the Veteran is at risk for prostate cancer. The treating professional noted the Veteran had three biopsies in the past (in 1992, 1994, and 2001) which all returned negative results for cancer. As such, the post-service treatment records establish the Veteran has consistently experienced an enlarged prostate, since as early as 1992, but do not establish the Veteran had prostate cancer at any point during the period on appeal. However, a current diagnosed condition alone is not sufficient grounds for service connection. Rather the disability must be caused by or aggravated by service. This connection can be established by either medical opinion of record, or by credible lay evidence that establishes continuity of symptomatology. As discussed, post-service treatment records establish the Veteran has experienced this condition since as early as 1992. However, 1992 is thirty-eight years after the Veteran separated from military service. Therefore the record does not establish that the Veteran's enlarged prostate condition began during active military service. In addition, post-service treatment medical records were reviewed but provide no opinion as to the etiology of the Veteran's prostate condition. As such, medical evidence of record does not establish the Veteran's current enlarged prostate condition either began during, or was otherwise caused by, his military service. In addition, the Veteran did not file a claim seeking service connection for his prostate condition until 2008, over fifty years after he separated from military service. The Board finds this delay in applying for benefits is particularly probative because the Veteran did file VA claims seeking service connection for other conditions during this time period. Notably, the Veteran filed his initial claim for VA benefits in 1977 seeking service connection for varicose veins. However, the Veteran made no mention of his prostate condition at this time. Because the Veteran was aware of the process of filing for VA benefits, the Board finds the Veteran's delay in filing a claim for his prostate condition probative evidence that the condition did not begin during or shortly after service. More persuasively, at no point during the period on appeal has the Veteran actually alleged that his prostate condition began in service. In his September 2008 claim the Veteran asserted his prostate condition began in 1970, fifteen years after he separated from service. In his November 2011 hearing the Veteran testified that his prostate condition began "quite a few years back." The Veteran also testified that he did not know how his prostate condition was related to his military service, or what caused his condition. As such, the Veteran himself has not asserted that his prostate condition began during service. Based on all the foregoing the Board finds that the evidence of record does not establish the Veteran's current prostate condition began during, or was otherwise caused by, his activity military service. As such, the Veteran's claim for service connection for prostate condition is denied. New and Material Evidence The Veteran is also seeking service connection for varicose veins and pleurisy. As will be discussed below, both of these claims have been previously denied. However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 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). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board is whether new and material evidence has been presented to reopen the claim. The Board will first turn to a discussion of the Veteran's claim for service connection for varicose veins. Varicose Veins The Veteran has filed two previous claims for varicose veins, in February 1977 and July 1991. The Veteran's February 1977 claim was denied in an October 1977 rating decision because the RO found the evidence did not establish that the Veteran's varicose veins were incurred in or aggravated by his military service. The Veteran did not file a notice of disagreement within one year, and no new and material evidence was received within one year, so the rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran's July 1991 claim was denied in January 1992 and May 1994 rating decisions for failure to submit new and material evidence. The Veteran initially appealed the rating decision, but withdrew his appeal in July 1996. Therefore, those rating decisions are now final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.204, 20.302, 20.1103. At the time of the May 1994 rating decision, the evidence of record included the Veteran's lay testimony at his June 1993 hearing and several written statements in which he alleged that he received treatment for varicose veins while on active duty service. The record also contained written statements from the Veteran's siblings alleging he complained of his varicose veins condition while still on active duty. Additionally, the record included VA treatment records from January through September 1977 for treatment of varicose veins. Although the Veteran's service treatment records were not included (as discussed above), the record included a report from a search of military morning reports from January 1954 through July 1954 which showed the Veteran was not on sick call during that period. The RO considered all evidence and found that Veteran's newly submitted evidence was cumulative and did not provide a new basis for consideration of the claim. In September 2008 the Veteran again sought to reopen his previously denied claim for service connection for varicose veins. In conjunction with his claim to reopen the Veteran submitted a written statement. The new evidence submitted while this claim was pending included VA treatment records from 1998 through 2009, private treatment records from the Veteran's hospitalization from April through May 2012, and the Veteran's testimony at his November 2011 hearing. The RO also requested an expanded search of all morning reports from January 1954 through October 1954 however found no results. Although this evidence was not previously submitted to the VA before the May 1994 rating decision and is therefore "new," as discussed below the Board does not find this evidence to be "material." The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court explained this standard is intended to be a low threshold. Id. Here, the new medical evidence submitted establishes that the Veteran currently has varicose veins bilaterally and continues to receive treatment. However, the RO did not previously deny the Veteran's claim for failure to establish a current disability, which was never in dispute. The VA previously considered the Veteran's treatment for varicose veins in their previous rating decisions, including as far back as October 1977. Therefore the VA agrees that the Veteran currently has varicose veins. Instead, the RO denied the Veteran's claim for failure to establish that his current varicose veins condition began during, or was otherwise caused by, his time in service. The new evidence submitted includes a copy of the Veteran's VA treatment records from 1977 which note the Veteran reported a twenty-five year history of varicose veins. However, an earlier submitted copy of these records was already considered by the VA in the Veteran's initial claim for service connection. The RO considered this evidence and found it was not sufficient to establish the Veteran's current condition began in service. As such, the Board finds this evidence is not new. The Veteran did submit new, more recent, treatment records which establish that he received treatment for his bilateral varicose veins as recently as May 2012. His condition is primarily treated by wearing medical stockings and elevating his legs. However, none of the newly submitted medical evidence establishes that the Veteran had varicose veins before 1977. Additionally, these newly submitted records also do not include an opinion as to the etiology of the Veteran's current condition. As such, the newly submitted medical evidence does not serve to establish the unestablished fact necessary to substantiate the claim, that his current condition either during or was otherwise caused by his military service. Therefore this new medical evidence is not material. The Veteran also submitted new lay evidence in which he attested he was treated for varicose veins while in service, including his testimony at his November 2011 hearing. However, the Veteran had previously made similar statements alleging treatment in service which were already considered by the VA in his previous claims. The RO ultimately determined his statements were not supported by the evidence of record. The Veteran's new assertions regarding this same allegation are merely cumulative of previously considered evidence and are therefore not new and material evidence. He is simply repeating his prior claim. As such, the Board finds the Veteran has not submitted new evidence which relates to the unestablished fact that his currently diagnosed varicose veins began during, or were otherwise caused by, his military service. As such, the evidence submitted is not material and does not reasonably result in substantiation of the claim under Shade. The Veteran's claim for service connection for varicose veins is therefore not reopened. Pleurisy The Veteran previously filed a claim seeking service connection for pleurisy (previously claimed as a lung condition) in July 1991. In a January 1992 rating decision the RO denied the Veteran's claim. The Veteran did not file a notice of disagreement on this particular issue within one year, and new and material evidence was not received within one year, so the decision is now final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.204, 20.302, 20.1103. At the time of the January 1992 rating determination the evidence of record included the above mentioned VA treatment records from 1977 and the results from a search of the military morning reports from January 1954 through July 1954 showing the Veteran was not on sick call during this period. The RO considered the evidence of record found the evidence did not establish that the Veteran's pleurisy was incurred in or aggravated by his military service. In September 2008 the Veteran sought to reopen his claim for entitlement to service connection for pleurisy. In a November 2008 written statement the Veteran asserted that in the 1970's a VA doctor told him that his pleurisy was caused by his varicose veins when a blood clot moved from his legs into his lungs. The Board notes that the Veteran has not previously asserted this theory of entitlement that his pleurisy is secondary to varicose veins. However, the Board finds that this new assertion of service connection on a secondary basis is not material. As discussed above, the VA has previously determined the Veteran's varicose veins are not service connected, and the Veteran has not submitted new and material evidence to reopen this denial. Additionally, service connection cannot be granted secondary to a condition which is not service connected. As such, the Veteran's pleurisy cannot be service connected secondary to his non-service connected varicose veins condition. Therefore, the Veteran's theory of entitlement to service connection on a secondary basis is not material as it does not raise a reasonable possibility of substantiating a claim even under the low threshold established by the Court in Shade. 24 Vet App at 118. As such, the Board finds the Veteran's new assertion of entitlement to service connection secondary to varicose veins is not new and material evidence. New medical evidence was also submitted, as summarized above. However, the newly submitted medical evidence does not establish that the Veteran had pleurisy at any point earlier than 1977, twenty-three years after separating from active duty service. The evidence also does not provide an opinion regarding the etiology of the Veteran's pleurisy. As such, this newly submitted medical evidence does not establish the unestablished fact that the Veteran's condition began during, or was otherwise caused by, his time in military service. Moreover, some of the newly submitted evidence serves to establish that the Veteran does not currently have a condition of pleurisy. Treatment records as recent as May 2012 reflect that the Veteran's lungs are clear to auscultation (hearing) bilaterally. In addition the Veteran himself testified at his November 2011 hearing that his pleurisy had not reoccurred since 1977. As such, the newly submitted evidence even tends to establish that the Veteran does not currently have pleurisy. Even if the Veteran continues to experience pleurisy, the newly submitted evidence does not establish the unestablished fact that the Veteran's condition began during or was otherwise caused by his military service. As such, the evidence submitted is not material and does not reasonably result in substantiation of the claim under Shade. The Veteran's claim for service connection for pleurisy is therefore not reopened. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the veteran that: (1) notifies him of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. Additionally in all claims VCAA notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in November 2008, which informed the Veteran of all the elements required by the Kent and Pelegrini II courts as stated above. The letter also informed the Veteran how disability ratings and effective dates were established as required by Dingess/Hartman. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records were obtained. As discussed above, the Veteran's service treatment records were unavailable due to a fire, but the RO searched all available military morning reports for the relative time period. A February 2012 letter informed him of alternative types of evidence that he could submit in light of his missing service records, while an August 2009 letter advised him to submit any service records he had in his possession. The Veteran was asked to provide the name of the hospital where he was treated for varicose veins while in Germany during service, as well as the month and year of such treatment, so that an additional search of clinical records could be made. He did not provide this information, so nothing further can be done. Additionally, the Veteran was able to testify before the Board. While a VA medical examination was not provided in this case, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide a veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability, or persistent or recurrent symptoms of a disability, may be associated with the veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As discussed above, in his claim for service connection for prostate condition the Veteran has not asserted at any point that his symptoms began during and have continued since his military service. As such, the Veteran has not asserted that his disability was associated with his service and the VA's duty to provide an examination was not triggered. With regards to the Veteran's claims for service connection for varicose veins and pleurisy, as discussed above the Board has not reopened these claims. As such, the Board does not have a duty to provide an adequate medical examination when the Veteran has not submitted new and material evidence to reopen the case. Woehleart v. Nicholson, 21 Vet. App. 464, 463 (2007) (Holding "The adequacy of the Secretary's new medical examinations became moot, because a readjudication of the merits of the appellant's claim was barred by statute."). As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for service connection for a prostate condition is denied. New and material evidence has not been presented to reopen a claim of entitlement to service connection for the Veteran's varicose veins, the Veteran's claim is not reopened, and the appeal is denied. New and material evidence has not been presented to reopen a claim of entitlement to service connection for the Veteran's pleurisy, the Veteran's claim is not reopened, and the appeal is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs