Citation Nr: 1317048 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 08-39 710 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tumor and nerve removal from the spine. 2. Entitlement to service connection for tumor and nerve removal from the spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified at a hearing before the Board in March 2013. FINDINGS OF FACT 1. Service connection for tumor and nerve removal from the spine was denied by a November 1995 rating decision. The Veteran was notified of that decision in November 1995, but did not appeal the denial. 2. The evidence received since the November 1995 rating decision raises a reasonable possibility of substantiating the claim for service connection for tumor and nerve removal from the spine. 3. The Veteran's tumor and nerve removal from the spine is not attributable to active duty service. CONCLUSIONS OF LAW 1. New and material evidence to reopen a previously denied claim of service connection for tumor and nerve removal from the spine has been received. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The Veteran's tumor and nerve removal from the spine is not the result of disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated August 2007. The Veteran was advised in the correspondence that his claim for tumor and nerve removal from the spine was previously denied because there was no evidence that disability was incurred in or aggravated by service. The correspondence also told the Veteran what constitutes new and material evidence and also advised him of the elements necessary to establish service connection on a direct basis. That document satisfied the notice requirements. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran has been given ample time to respond to that notice and provide evidence that relates to the previously unestablished facts. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the December 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. 38 C.F.R. § 3.159 (c)(4)(iii) (2012). However, in this case, the Veteran was afforded a VA examination to assess his claim. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran originally submitted a claim of entitlement to service connection for tumor and nerve removal of the spine in June 1995. The claim was denied in November 1995. Notice of the denial and notice of appellate rights were provided in November 1995. The Veteran did not initiate an appeal and the November 1995 rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). As a result, service connection for tumor and nerve removal from the spine may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Evidence is considered new if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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 determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence before VA at the time of the prior final denial consisted of the Veteran's service medical records and VA treatment reports dated from February to March 1995. The Veteran's service medical records do not show any reports, findings, or treatment for any disability of the spine, including any tumor or nerve problems. Clinical evaluation of the Veteran's spine was normal at the Veteran's entrance examination dated in January 1972, an annual examination in May 1973, and at a separation examination dated in January 1975. VA treatment records show that the Veteran was initially seen for a report of left leg weakness and right leg pain for one year in February 1995. He was assessed with a possible spinal meningioma. In March 1995, the Veteran was noted to have an intraspinal tumor and he underwent a thoracic laminectomy and resection of intradural spinal tumor. The RO denied the claim in a November 1995 rating decision. The basis of the denial of the claim was that the Veteran's claimed tumor and nerve removal from the spine was neither incurred in nor aggravated by service. The Veteran submitted a claim to reopen his claim for service connection for tumor and nerve removal from the spine in June 2007. Evidence associated with the claims file since the final prior denial consists of additional VA treatment reports, private treatment reports from various providers, a statement from the Veteran's treating physician at VA, a November 2012 VA examination report, and statements and testimony from the Veteran. Because the evidence received since the prior denial was not previously of record, it is new evidence. Because it addresses specifically the issue before the Board, the Board finds that the new evidence is material. 38 C.F.R. § 3.156 (2012). Since the final prior denial, the Veteran has submitted evidence of treatment for additional spine problems including a neurofibroma of the spinal cord. Additionally, the Veteran submitted a statement from a VA physician indicating that his disability is related to his service. Consequently, the Board concludes that the evidence is neither cumulative nor redundant, and that it raises a reasonable possibility of substantiating the claim. Accordingly, because new and material evidence has been submitted, the claim is reopened. To that extent only, the claim is allowed. The RO adjudicated the claim as one for service connection. Therefore, it is not prejudicial to the Veteran to proceed with adjudication of the claim for service connection. The Veteran contends that his tumor and nerve removal from the spine are related to service. Specifically, he has indicated that he believes that the claimed disability resulted from exposure to radiation while working with nuclear weapons while in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In the alternative, where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition, service connection can be granted for that chronic disability. The evidence must be medical unless it relates to a condition where lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In general, service connection for a disability claimed to be attributable to ionizing radiation exposure during service, may be established in one of three ways. First, VA has identified certain diseases which are presumed to be the result of radiation exposure. That presumption must be based upon a finding that the Veteran was exposed to radiation. 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2012). Second, there are other radiogenic diseases which may be service connected directly. 38 C.F.R. § 3.311 (2012). The list of radiogenic diseases, however, is not exclusive. The Veteran may provide competent scientific or medical evidence that the disease claimed to be the result of radiation exposure is a radiogenic disease. 38 C.F.R. § 3.311(b)(4) (2012). Third, even if the disease in question is not listed in 38 C.F.R. § 3.309 or is not a radiogenic disease under 38 C.F.R. § 3.311, the Veteran is not foreclosed from proving direct service connection by establishing direct actual causation. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service separation document shows that his military occupation specialty (MOS) during service was a weapons mechanic. The Veteran submitted various documents to verify that he took training classes for weapons maintenance technician and weapons system maintenance during service. The records also include reference to the duties required of a weapons mechanic and a weapons maintenance technician. The Veteran's service medical records do not reflect any reports, findings, or treatment for any disability of the spine, including any tumor or nerve problems. Clinical evaluation of the Veteran's spine was normal at the Veteran's entrance examination dated in January 1972, annual examination in May 1973, and separation examination dated in January 1975. The private treatment reports from various providers are dated from June 1991 to April 1997 and show that the Veteran reported low back pain radiating to the left leg in February 1994. He again reported low back pain in December 1994. In February 1995, the records indicate that a magnetic resonance imaging (MRI) showed a spine cord tumor for which surgical treatment was necessary. The VA treatment records associated with the claims file show that the Veteran was noted to have an intraspinal tumor and he underwent a thoracic laminectomy and resection of intradural spinal tumor in March 1995. The Veteran continued to seek care for his spine and was assessed with a type I neurofibromatosis in August 2004. In July 2009, the Veteran was noted to have undergone a second procedure to remove an L1 intradural tumor. Associated with the claims file is a statement from the Veteran's treating physician at VA dated in December 2006. The physician indicated that he had been treating the Veteran for ten to eleven years and that the Veteran suffers from a neurofibroma over the T10 to L2 spinal level. The physician opined that the Veteran's neurofibroma of the spinal cord was more likely than not (greater than 50 percent probability) caused by his active duty service. The Veteran submitted a statement in July 2008 in which he indicated that he initially sought treatment for back pain in December 1992 and was ultimately referred for surgery to remove a spinal cord tumor in February 1995. He indicated that he had back pain since 1990 for which he has been unable to get relief. He also submitted a statement in August 2009 and stated that he believed that his spinal tumor resulted from his exposure to nuclear weapons in service. At a November 2012 VA examination, following a review of the claims file, recitation of medical history by the Veteran, and physical examination of the Veteran, the examiner diagnosed the Veteran with a neurofibroma. The examiner opined that the claimed disability was less likely than not incurred in or caused by the Veteran's active duty service. The examiner's rationale for the opinion was that the Veteran had a diagnosis of neurofibromatosis which was a genetic disease which was destined to manifest and would have occurred with or without military service. The examiner noted that disorder can present in childhood or as an adult. The examiner referred to the August 2004 VA outpatient entry which documented a diagnosis of type I neurofibromatosis. The examiner referenced a medical review from the Mayo Clinic entitled "Neurofibromatosis" last updated on August 12, 2012, which states that disorder was a genetic disease. At a March 2013 hearing before the Board, the Veteran testified that he was responsible for loading nuclear weapons during service for testing purposes. He indicated that he was never provided a dosimeter to check for potential exposure during service. He testified that he worked with nuclear weapons for seventeen or eighteen months during service. The Veteran reported that he was also exposed to depleted uranium. He testified that he was first diagnosed with neurofibroma in 1995 by a private physician. He stated that he was then referred by his doctor to VA for surgery to remove the tumor. The Veteran's representative indicated that he believed that the Veteran's claim should be remanded for radiation exposure development. However, development as a radiogenic disease is not warranted in this case because neurofibroma is not shown to be a radiogenic disease or to be due to exposure to ionizing radiation and the Veteran is not shown to be a radiation-exposed Veteran. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for tumor and nerve removal from the spine. As an initial matter, the Board notes that no medical professional has identified the claimed disability as radiogenic and the claimed disability is not a disease listed disease under 38 C.F.R. § 3.309. While there is medical evidence of a current disability, neurofibromatosis, there is no competent medical evidence of in-service incurrence or aggravation of a related injury or disease, and there is no competent medical evidence of a nexus between the current disability and an in-service disease or injury. The Board notes that while the Veteran has submitted a statement from his VA physician, dated in December 2006, which states that the Veteran's neurofibroma of the spinal cord is more likely than not related to the Veteran's military service, the examiner provided no rationale for that conclusion. Contrarily, the November 2012 VA examiner performed a physical examination of the Veteran, acknowledged the Veteran's diagnosis of neurofibromatosis, reviewed the Veteran's claims file and relevant medical history, consulted medical literature, considered the Veteran's statements, and indicated that neurofibromatosis was less likely than not related to the Veteran's active duty service. The examiner provided a rationale for the opinion with reference to medical literature to support this conclusion. Consequently, the Board finds the November 2012 VA opinion to be the most probative evidence with regard to the etiology of the Veteran's claimed disability. Additionally, service connection with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, is not available here because the Veteran's claimed disorder is not among those listed in 38 C.F.R. § 3.311(b). Additionally, no competent authority has identified the claimed disability as a radiogenic disease. 38 C.F.R. § 3.311(b)(4) (2012). The Board acknowledges that the Veteran is competent to report that he experienced low back pain since service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Veteran's opinion that his claimed tumor and nerve removal from the spine is related to his active duty service is insufficient to provide the requisite etiology of the current disability because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004) (layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements regarding his tumor and nerve removal from the spine being related to his active duty service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for tumor and nerve removal from the spine and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for tumor and nerve removal from the spine is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs