Citation Nr: 1314993 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 10-38 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a left varicocele. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for residuals of a left knee injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1956 to October 1956 and October 1960 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal. 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). The issue of entitlement to service connection for a left varicocele is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied a claim to reopen for service connection for a left varicocele in a February 1996 rating decision. The Veteran was notified of the decision and of his appellate rights that month, but did not appeal. 2. Evidence submitted since the February 1996 decision is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and triggers VA's duty to assist by obtaining a medical opinion. 3. The RO denied a claim to reopen for service connection for a left knee injury in a November 2007 rating decision. The Veteran was notified of the decision and of his appellate rights that month, but did not appeal. 4. Evidence submitted since the November 2007 rating decision is cumulative and redundant. CONCLUSIONS OF LAW 1. The February 1996 rating decision, which denied to reopen a claim for entitlement to service connection for a left varicocele, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen a claim for service connection for a left varicocele. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The November 2007 rating decision, which denied to reopen a claim for entitlement to service connection for residuals of a left knee injury, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 4. New and material evidence has not been received to reopen a claim for service connection for residuals of a left leg injury. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO informed the Veteran of VA's duty to assist him in the development of his claim in a letter dated September 2009 that contained all of the required notice. As the Board has decided to reopen the Veteran's claim for service connection for a left varicocele, no discussion of VA's duty to notify and assist within the context of that issue is necessary. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, private treatment records, and VA medical records have been obtained. VA provided the Veteran with adequate medical examinations in July 1965 and September 1968. The examinations were adequate because they contained a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also addressed the functional effects caused by the Veteran's disabilities, to include the effects on his occupation and usual daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, 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. 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). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court recently held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Analysis Left Varicocele In a February 1996 rating decision, the RO denied a claim to reopen for service connection for a left varicocele, on the basis that the evidence submitted was not new and material. The evidence considered at this time consisted of the Veteran's statements, service treatment records, a July 1965 VA examination report, and a November 1994 private treatment record showing a varicocelectomy performed by a Dr. R. B. and reference to another varicocelectomy performed in June 1977 by a Dr. R. R.. The Veteran was notified of that decision and of his appellate rights by way of letter sent to him on February 1996. He did not appeal that rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the February 1996 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The RO received the instant petition to reopen the claim in September 2009. The evidence received since the February1996 RO decision includes written statements from the Veteran. In the Veteran's written statements, he contends that he suffered from a left varicocele during service and it continued after service. In his November 2009 NOD, the Veteran asserted that his condition was aggravated by his military service. This had not been previously claimed. Further, the Veteran stated that he has sought treatment for this condition since its inception. In an October 2012 Informal Hearing Presentation by the Veteran's representative, it was indicated that the Veteran desired to pursue his service-connection claim under an additional theory of aggravation of a pre-existing condition. In particular, it was noted that the left varicocele was diagnosed at the time of induction and that it existed throughout service, as it was shown on the separation examination as well. The Veteran's service treatment records show that the Veteran was noted with a left varicocele both upon entrance and exit from service. The Veteran's written statements constitute new evidence, as they were not previously considered by the RO. The statements are new because the Veteran had not previously alleged a possible aggravation of his condition from military service. Further, they are material because, if proven, they could show that the condition does have a relationship to military service. Since the lack of such new and material evidence regarding a showing of a relationship of the Veteran's left varicocele to military service was a basis for the denial of the claim in the last final rating decision, in order to be material, any new evidence must relate to this unestablished fact and/or at least trigger the duty to assist by providing a medical opinion. See 38 C.F.R. § 3.303 (2012); see also Shade, 24 Vet. App. at 117. The Veteran's service treatment records and written statements essentially indicate that his left varicocele was incurred or aggravated during his initial period of service. Further, the Veteran's written statements indicate that this left varicocele has continued to this day, as he claims to have received treatment. The Board notes that the Veteran is competent to testify as to the severity of the symptomatology associated with his left varicocele during and after service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, his statements are presumed credible for the purposes of determining whether new and material evidence has been submitted. In short, the finding of new and material evidence is supported and it also triggers VA's duty to assist by providing a medical opinion. As new and material evidence has been received, the claim is reopened. The Veteran's appeal to this extent is allowed. Left Knee Injury In a November 2007 rating decision, the RO denied a claim to reopen for service connection for a left knee condition, on the basis that the evidence submitted was not new and material. The evidence considered at this time consisted of the Veteran's statements, service treatment records, a July 1965 and September 1968 VA examination report, VA treatment records, and private treatment records. The Veteran was notified of that decision and of his appellate rights by way of letter sent to him on November 2007. He did not appeal that rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the November 2007 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The RO received the instant petition to reopen the claim in September 2009. The evidence received since the November 2007 RO decision includes written statements from the Veteran and VA outpatient treatment records. In the Veteran's written statements, he contends that he sustained an injury to his left knee playing softball in service. In his September 2010 VA Form 9, the Veteran indicated that he has had surgery with a private doctor due to the severity of his leg. He also stated that he has been suffering since the onset of his injury in 1960. The Veteran's VA outpatient treatment records show that he has been continually treated for arthritis in his left knee. These records also show that he is status post left total knee replacement surgery. The Board finds that the statements regarding the Veteran's alleged in-service injury of his left knee and continued complaints and treatment, resulting in a total knee replacement, are material, as they go to the issues of establishing an in-service incurrence or injury and a continuity of symptomology. The Board notes that the Veteran is competent to testify as to the severity of the symptomatology associated with his left knee condition during and after service. See Jandreau, 492 F.3d at 1372. Additionally, his statements are presumed credible for the purposes of determining whether new and material evidence has been submitted. Further, the VA treatment records showing that the Veteran has been treated for arthritis of his left knee and received a total knee replacement are material, as they show that the Veteran has a current disability. However, the Board finds that the Veteran's written statements and VA outpatient records do not constitute new evidence, as they contain assertions that were previously considered by the RO and are cumulative. The evidence of post-service treatment and total knee replacement surgery were already considered by the November 2007 rating decision. Further, the claim of sustaining this injury while playing softball in the military and the continuation of complaints, pain, arthritis post-service were also considered by the November 2007 rating decision. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left varicocele; the appeal is granted to this extent. New and material evidence has not been received to reopen the claim of entitlement to service connection for residuals of a left knee injury; the appeal is denied to this extent. REMAND Having reopened the Veteran's claim for service connection for a left varicocele, VA has a duty to assist the Veteran in the development of the claim by seeking a medical opinion on the question of causal nexus and obtaining any outstanding treatment records. The Veteran has asserted that this condition was present during military service and has continued to present. The Veteran also contends that he had this condition at service induction and that military service possibly aggravated it if not caused it. The Veteran's service treatment records show that he had a left varicocele both during his induction and exit physical examinations. A private treatment record in November 1994, over thirty years after service, shows that the Veteran still had this condition, as he received a varicocelectomy to treat. This record also indicated that the Veteran had received a varicocelectomy in June 1977. In light of this above evidence, the Board finds that he should be afforded a VA examination to address the question of whether the Veteran's left varicocele was incurred or aggravated as a result of service. See McLendon. v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the etiology and severity of the Veteran's left varicocele. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left varicocele had its onset in or is otherwise related to military service. Further, in the alternative, the examiner should look at whether the Veteran had a left varicocele prior to military service and whether such condition was clearly and unmistakably aggravated beyond its natural progression by military service. The Veteran's lay statements regarding continued complaints of symptoms should be taken into account. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs