Citation Nr: 1313254 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-15 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a left eye disability, to include herpes complex virus. 2. Entitlement to service connection for a left eye disability, to include herpes complex virus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The appellant served had a period of active duty for training (ACDUTRA) from August 1981 to February 1982, and had service in the Army National Guard thereafter, including from July 1986 to July 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appellant was scheduled to appear at a hearing before the Board in April 2010, but did not report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In a February 2009 statement of the case, while the RO determined that new and material evidence had not been submitted to reopen the appellant's previously denied claim, its analysis and discussion of the evidence both prior to and since the previous June 2005 denial of the appellant's claim for service connection in substance addressed the claim for service connection for a left eye disability, to include herpes complex virus, on the merits. However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to adjudicate the underlying claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received, and in view of the Board's favorable decision on the request to reopen, the Board has characterized the appeal as set forth on the title page. The Board has not only reviewed the appellant's physical claims file but also the appellant's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The claim for a left eye disability, to include herpes complex virus, was previously denied by the RO in a decision in June 2005, the appellant did not appeal that decision, and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the appellant. 2. The additional evidence received since the final rating decision by the RO in June 2005 relates to an unestablished fact necessary to substantiate the claim. 3. The weight of the evidence establishes that a left eye disability, to include herpes complex virus, did not began during or is in any way related to a period of ACDUTRA. CONCLUSIONS OF LAW 1. The rating decision in June 2005 by the RO, denying a left eye disability, to include herpes complex virus, became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b) (2012). 2. The additional evidence presented since the rating decision in June 2005 is new and material, and the claim for a left eye disability, to include herpes complex virus, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection for a left eye disability, to include herpes complex virus, have not been met. 38 U.S.C.A. §§ 101(22), (24), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issues on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Given the favorable disposition of the appellant's claim to reopen a previously denied claim, which is not prejudicial to the appellant, the Board need not assess VA's compliance with the VCAA in the context of that issue. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Regarding the remaining issue, the information contained in an October 2007 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the appellant was notified of regulations pertinent to the establishment of an effective date and disability rating in the October 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant's service treatment records and identified private medical records have been obtained. The appellant has not been afforded a VA examination in connection with his current claim for service connection. However, as explained below, the Board finds that the evidence does not indicate that his claimed disability may be associated with any established event, injury or disease in service. Therefore, remand for a VA examination is not warranted. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the appellant's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The appellant should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for organic diseases of the nervous system is one year. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be also granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. However, the presumption provisions of 38 C.F.R. §§ 3.307 and 3.309, are inapplicable to periods of ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Thus, such provisions are not applicable in this case. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a claimant is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. A. New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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) (2012). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO most recently denied service connection for a left eye disability, to include herpes complex virus, in June 2005. That rating decision was not appealed, and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the appellant. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the June 2005 decision. Therefore, the June 2005 decision is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). See also 38 C.F.R. § 3.156(b), (c). The basis of the prior final denial was the RO's finding that the evidence did not establish that the Veteran's herpes complex virus began during or was related to service. Thus, in order for the appellant's claim to be reopened, evidence must have been added to the record since the June 2005 rating decision that addresses this basis. Evidence submitted and obtained since the June 2005 rating decision includes an August 2006 private treatment note indicating that the Veteran had had recurrences of his herpes simplex virus of the left eye since 1982. Without addressing the merits of this evidence, the Board finds that the August 2006 private treatment relates to the issue of whether a left eye disability, to include herpes complex virus, began during a period of service. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claim. The Board thus finds that new and material evidence has been submitted to reopen the claim of entitlement to service connection for a left eye disability, to include herpes complex virus, since the June 2005 rating decision. On this basis, the issue of entitlement to service connection for service connection for a left eye disability, to include herpes complex virus, is reopened. B. Service Connection In this case, as reflected in an April 2003 statement and in his March 2009 substantive appeal, the appellant asserts that herpes complex virus affecting his left eye first began in 1982, after leaving basic training. However, considering the pertinent evidence in light of the governing legal authority, the Board finds that the appellant's service connection claim must be denied. Service treatment records reflect no diagnoses or findings pertinent to herpes complex virus or any other left eye problem during the appellant's period of ACDUTRA from August 1981 to February 1982. The report of a February 1985 periodic service examination for the National Guard reflects that the appellant had a normal clinical evaluation of the eyes, and no herpes, eye problems were noted. At that time, the appellant reported that he did not have and had never had eye trouble. The earliest indication of any left eye problem is contained in a January 1987 private treatment note, which reflects that the appellant complained of left eye being red and swollen. At the time, he denied any injury, no history of any eye problems was noted, and it was noted that the appellant had conjunctivitis on his eye. Subsequent private treatment records, beginning in November 2002, reflect treatment for herpes complex virus affecting the left eye. There is no medical opinion or other such competent evidence relating either herpes complex virus to the appellant's period of ACDUTRA from August 1981 to February 1982 or to service in any other way. Thus, the record reflects that the appellant did not develop a left eye disability, including herpes complex virus, during any period of ACDUTRA, and does not indicate that such disability is otherwise related to the appellant's service in any other way. The Board acknowledges the appellant's assertion that that herpes complex virus affecting his left eye first began in 1982, after leaving basic training. The appellant is competent to report matters within his own personal knowledge, such as when he first began having eye problems. See Layno, 6 Vet. App. at 469. However, in light of the evidence of record, the Board finds that this assertion is not credible. Again, service treatment records reflect no diagnoses or findings pertinent to herpes complex virus or any other left eye problem during the appellant's period of ACDUTRA from August 1981 to February 1982, and the earliest indication of any left eye problem is contained in a January 1987 private treatment note that does not indicate any history of herpes complex virus or other such eye problems. Also, in February 1985 the Veteran reported that he did not have and had never had eye trouble. The Board also acknowledges that an August 2006 private treatment record contains a notation that the appellant had had recurrences of his herpes complex virus since 1982. However, this record is the earliest in the claims file that notes any such history of recurrent herpes since 1982, and the notation appears to be documentation of the subjective history given by the appellant. Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1996). As the Board does not find the appellant's assertions regarding the onset of his eye problems in 1982 to be credible, this notation in the August 2006 private treatment record is of no probative value. Finally, the appellant might believe that his herpes complex virus affecting his left eye is in some way related to either his period of ACDUTRA from August 1981 to February 1982 or to service in some other way. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, any such question of causation in this case extends beyond an immediately observable cause-and-effect relationship, and is one that would require medical expertise to answer. As such, the Veteran is not competent to address etiology in the present case. Thus, the Board finds that the weight of the evidence establishes that a left eye disability, to include herpes complex virus, did not begin during or is in any way related to a period of ACDUTRA. Accordingly, the Board finds that the claim for service connection for a left eye disability, to include herpes complex virus, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a left eye disability, to include herpes complex virus, is reopened and, to that extent only, the appeal is granted. Service connection for a left eye disability, to include herpes complex virus, is denied. ____________________________________________ Mark W. Greenstreet Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs