Citation Nr: 1313309 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-01 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for head tumors (sphenoid meningioma and posterolateral orbital tumor also claimed as melanoma). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for mouth tumors (chronic periodontis also claimed as melanoma). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that found that the Veteran had not submitted new and material evidence to reopen his claims for entitlement to service connection for tumors of the head and mouth. In a June 2012 brief, the Veteran's representative raised the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). This claim has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The RO denied the Veteran's original claim of service connection for tumors of the head and mouth in a January 2008 rating decision and confirmed and continued the denial in a July 2008 rating decision; the Veteran filed a notice of disagreement (NOD) in December 2008, and was issued a statement of the case (SOC) in May 2009, but did not perfect his appeal. 2. Evidence received since the most recent final decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claims for entitlement to service connection for head and mouth tumors, nor does it raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The July 2008 rating decision, denying service connection for head and mouth tumors, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2008). 2. Because evidence received since the July 2008 rating decision is not new and material with regard to his claim for entitlement to service connection for head tumors, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Because evidence received since the July 2008 rating decision is not new and material with regard to his claim for entitlement to service connection for mouth tumors, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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). Regarding VA's duty to notify with respect to a petition to reopen a previously disallowed claim, VA must also advise the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). This requires VA to look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Id. at 9-10. In a pre-adjudication letter dated in October 2009, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection. In addition, the letter met the notice requirements set out in Dingess and Kent. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Further, the Board finds that the October 2009 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. Pertinent evidence includes his service treatment records, VA treatment records and the Veteran's statements in support of his claims. The Board notes that in his September 2009 informal claim, the Veteran indicated that he had new and material evidence to submit and that he had received medical treatment from a private physician. The October 2009 letter instructed him to complete an enclosed VA Form 21-4142, Authorization and Consent to Release Information, to enable VA to obtain any private medical records on his behalf. The Veteran responded by requesting 30 days in which to provide additional evidence, but did not provide release forms or any additional evidence. In his April 2010 NOD and his January 2011 substantive appeal, he again indicated that he was in the process of obtaining further medical evidence to prove his case. However, other than a VA neuropsychology consultation, the Veteran has not provided any additional evidence and the Board is also unaware of any such evidence. Moreover, the duty to provide a VA medical examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As will be discussed below, new and material evidence has not been submitted and the Veteran's service connection claims will not be reopened; therefore, examination is not required. Indeed, none of the evidence submitted since the last final denial triggers VA's duty to provide a medical examination. Thus, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. Claims to Reopen In order to reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "[T]he question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied." Kent, 20 Vet. App. at 10; see Bostain v. West, 11 Vet. App. 124, 127 (1998) (noting that the "last final disallowance" of a claim was the denial of a request to reopen). The provisions of 38 C.F.R. § 3.156(a) define 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. See 66 Fed. Reg. 45620, 45630 (Aug. 29, 2001). 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(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). "[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence." Rather, it is simply "a component of the question of what is new and material evidence," and should be informed by the question of whether the "evidence could, if the claim were reopened, reasonably result in substantiation of the claim." Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). New and material evidence is not required "as to each previously unproven element of a claim." Id. at 120. Thus, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See id. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). All evidence received subsequent to a final decision is considered credible for the purposes of reopening a claim. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted it is bound by a statutory mandate not to consider the merits of the case. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claims for entitlement to service connection for head and mouth tumors were denied in a January 2008 rating decision and the denial was confirmed in a July 2008 rating decision. The Veteran did not submit new and material evidence within a year of notice of this decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Although the Veteran filed a NOD in December 2008 and was issued a SOC in May 2009, he did not perfect his appeal. Thus, the July 2008 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2008). In the January and July 2008, the RO denied the Veteran's claim for entitlement to service connection for head and mouth tumors a skin disorder because these disorders were not on the list of diseases presumed to be associated with exposure to herbicides under 38 C.F.R. § 3.309(e) (2012). The RO noted that other claimed diseases could be considered related to herbicide exposure if supported by competent scientific or medical evidence. Although the Veteran's medical records showed evidence of meningioma of the right sphenoid which was resected and was benign, and two excisions of periodontitis which were not malignant, service treatment records did not show any evidence of these disorders and the Veteran denied any problems on his separation Report of Medical History. In addition, the RO noted that there was no evidence that the Veteran's disorders were related to herbicide exposure. Therefore, new and material evidence addressing these bases is required to reopen the claim. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 118. The Board finds that, while new medical evidence and statements with regard to the etiology of the Veteran's claimed head and mouth tumors have been added to the record since the July 2008 rating decision, none of this evidence raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 110, McLendon, 20 Vet. App. at 79. The Board finds that this evidence is new because it was not before the adjudicator in July 2008. However, this new evidence does not trigger the need for a VA examination under 38 C.F.R. § 3.159(c)(4)(iii) and McLendon, 20 Vet. App. at 79. See Shade, 24 Vet. App. at 110. The VA medical records added to the claims file include a May 2011 neuropsychology consultation report, showing that the Veteran's sphenoid tumor and associated meningioma were possible contributors to his cognitive problems; however, these records do not provide any link between his head and mouth tumors and his service, to include in-service exposure to herbicides. The Veteran has submitted a statement to the effect that his claim is for melanoma, which is essentially a different theory of entitlement for his claim for service connection for head and mouth tumors. However, a claim based on a new theory of entitlement is not a new claim, but constitutes an application to reopen the previously denied claim. Ashford v. Brown, 10 Vet. App. 120 (1997). Thus, the Veteran must submit new and material evidence as to this theory of entitlement. The VA medical records submitted since the July 2008 rating decision show ongoing treatment for the Veteran, but do not show any diagnosis of melanoma. As there is no new evidence that raises a reasonable possibility of substantiating the claims for entitlement to service connection for head and neck tumors, the claims are not reopened and the benefit-of-the-doubt doctrine is not applicable. See Jackson, 265 F.3d at 1366; Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been received to reopen a claim of entitlement to service connection for head tumors (sphenoid meningioma and posterolateral orbital tumor also claimed as melanoma), the appeal is denied. As new and material evidence has not been received to reopen a claim of entitlement to service connection for mouth tumors (chronic periodontis also claimed as melanoma), the appeal is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs