Citation Nr: 1321872 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 07-35 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a prostate disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which reopened but denied on the merits service connection for a heart disorder and declined to reopen claims for service connection for prostate disorder, bilateral hip disorder, and bilateral knee disorder. The Veteran perfected an appeal on these issues to the Board. In March 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In February 2010, the Board declined to reopen the claims for service connection for bilateral hip and knee disorders, stayed the heart claim pursuant to a November 20, 2009 VA directive, and remanded the prostate claim to cure a procedural defect. On remand, in a March 2011 rating decision, the RO granted service connection for coronary artery disease with history of myocardial infarction associated with exposure to herbicides. Hence, there remain no allegations of errors of fact or law for appellate consideration on this issue. The RO continued the denial of the prostate claim in a supplemental statement of the case in April 2012. The case has now been returned to the Board for appellate review. In an April 2012 rating decision, the RO denied the Veteran entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In October 2012, the Veteran filed a new claim for entitlement to a TDIU. Accordingly, the issue of entitlement to a TDIU has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The April 2006 RO rating decision that denied service connection for a prostate disorder, is final. 2. The evidence received since the April 2006 RO decision is cumulative and redundant and does not raise a reasonable possibility of substantiating the claim for service connection for a prostate disorder. CONCLUSION OF LAW Evidence received since the final April 2006 RO decision, which denied a claim of entitlement to service connection for a prostate disorder, is not new and material, and thus the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's 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, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In addition, the Board notes that in claims to reopen, the duty to notify requires that the Secretary 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. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In a March 2007 letter, issued prior to the decision on appeal, the RO provided notice to the Veteran that sufficiently complies with the holding of the Court in Kent. The letter informed the Veteran that evidence was needed that showed that the prostate disorder existed from military service to the present time. The letter also informed the Veteran that the claim was previously denied because "there was no evidence to support a claim for prostate enlargement" and "[t]here was no treatment in service and the condition [was] not a presumptive of Agent Orange exposure." Thus, the Veteran was advised of the type of evidence that was lacking in the prior denial and of the type of evidence that was necessary to reopen the claim. While the notice letter referenced the wrong rating decision as the "last final denial," the Veteran was correctly informed of the bases for the prior final denial and the evidence necessary to substantiate the claim. Thus, the Veteran was not prejudiced by the error. The March 2007 letter additionally advised the Veteran of what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA as well as how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The Board finds that VA's duty to notify has been met. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, service personnel records, and post-service treatment records, including records from the Social Security Administration. In the March 2013 Informal Hearing Presentation, the Veteran's representative contended that VA failed to afford the Veteran a VA examination and obtain an opinion on whether the Veteran's prostate disorder is etiologically related to service. The Board, however, notes that in regard to new and material evidence claims, VA has no obligation to provide a VA examination until new and material evidence has been presented, which has not been done in this case. 38 C.F.R. § 3.159(c)(4)(iii) (2012). The Veteran was also provided an opportunity to set forth his contentions during the 2008 Board hearing. In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 23 Vet. App. 488 (2010). In regard to the first duty, during the hearing, the Veterans Law Judge (VLJ) enumerated the issue on appeal. In regard to the second duty, the VLJ asked questions surrounding elements of the claim that were lacking to substantiate the claim for benefits. Specifically, the Veteran was asked whether he was currently diagnosed with prostate cancer. The record was also held open for an additional 60 days to allow the Veteran to submit additional medical evidence in connection with an upcoming prostate examination. In addition, during the course of the hearing the Veteran also appeared to raise a theory of entitlement to service connection based on lay evidence of continuity of symptomatology. A duty to otherwise suggest the submission of medical nexus evidence was not raised as a direct theory of causation is unsupportable for reasons detailed below. Thus, the obligations under 38 C.F.R. 3.103(c)(2) were met. The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process. It does not contain any evidence not already in the paper claims folder or considered by the RO. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying relevant evidence, submitting statements, and presenting testimony setting forth his contentions. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Also, the Board finds that there has been substantial compliance with the directives of the February 2010 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. New and Material Evidence Pertinent Laws and Regulations 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 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent); Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216, 220 (1994) (providing that VA is not required to consider the patently incredible to be credible). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Analysis In a February 2002 statement, in pertinent part, the Veteran reported that he had "tested positive" for Agent Orange and that he had had "pain in the [crouch] [sic] from time to time." The Veteran also reported that his "kidneys aren't doing well." In a November 2002 rating decision, the RO denied service connection for groin pain, claimed as pain in the crotch on the basis that the Veteran did not respond to a letter that requested clarification of the condition claimed, the service treatment records were negative for the claimed condition, and the evidence did not show that the claimed condition originated in service. In the notice of decision letter dated in January 2003, the RO advised the Veteran of the denial and enclosed VA Form 4107, which explained the Veteran's procedural and appellate rights. The Veteran did not appeal the rating decision within the one year following notice of the decision and it became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). (The RO also denied service connection for a kidney disorder in the November 2002 rating decision.) A new claim was received in June 2003. In a March 2004 rating decision, the RO denied service connection for "enlarged prostate, secondary to Agent Orange previously claimed as groin pain, claimed as pain in crotch." The RO found that while the Veteran was presumed to have been exposed to Agent Orange due to his status as a Vietnam veteran, prostate cancer was a presumptive disease associated with Agent Orange exposure but not prostate enlargement. The RO noted that the Veteran's service treatment records were negative for prostate problems and that there was no current diagnosis of enlarged prostate or prostate cancer in the Veteran's medical records. In the notice of decision letter dated in April 2004, the RO advised the Veteran of the denial and his appellate rights but the Veteran did not appeal the decision and it became final. (The RO also denied service connection for a kidney disorder in the March 2004 rating decision.) A claim to reopen was received in September 2005. In an April 2006 rating decision, the RO denied service connection for a "prostate problem." The RO found that the Veteran's service treatment records were negative for a diagnosis of prostate condition or disease. The RO noted that while VA treatment records showed that the Veteran was diagnosed with benign hypertrophy of the prostate, this was almost 30 years after service and the Veteran had not submitted evidence showing the condition began in service. The RO maintained that there was no link shown between the prostrate disorder to service and benign hypertrophy of the prostate was not a condition recognized as due to herbicide exposure. The Veteran filed a notice of disagreement with the denial in April 2006. Thereafter, an informal conference was held between the Veteran's representative and a Decision Review Officer in August 2006 after which the representative withdrew the claim for service connection for a prostate disorder. In September 2006, the Veteran's representative filed VA Form 9 requesting a Board hearing (with no indication as to any appeal to which it was directed). In response, the RO sent the Veteran a letter that advised him of the different options and types of Board hearings. In November 2006, the Veteran indicated that he wanted his hearing request withdrawn and noted as follows: "Do not send my case to BVA I with draw my appeal." The Veteran then simultaneously filed additional claims including a claim for service connection for an enlarged prostate. Thereafter, in a March 2007 statement, the Veteran acknowledged that he withdrew his appeal in November 2006 but claimed that he did not understand that this action would cancel his request for a Travel Board hearing. The Veteran indicated that he wanted to "reinstate" his appeal and be scheduled for a Travel Board hearing. The RO essentially construed the withdrawal of appeal as valid and treated the November 2006 submission as a claim to reopen, which is the pending claim. The Board agrees. The actions of the representative and the Veteran's statements show that the intent was to withdraw the earlier appeal (for whatever unknown tactical reason). The Veteran ultimately received a Travel Board hearing in March 2008. Thus, the last final denial is the April 2006 rating decision. The relevant evidence of record at the time of the April 2006 rating decision included the Veteran's service personnel records which showed that the Veteran served in the Republic of Vietnam from June 1968 to June 1969 and in Germany from July 1969 to December 1970. Service treatment records showed that the Veteran was seen for a urinary tract infection in July 1968. The impression noted was gonorrhea. In August 1968, the Veteran complained of swelling and tenderness of the right groin area for which he was treated with antibiotics (Tetracycline). The diagnosis noted was inguinal adenopathy. In September 1968, the Veteran contended that he had a hernia and complained of intermittent pain in his right groin area. The physical examination revealed no hernia. In October 1968, the Veteran complained of sores on his genitalia. The impression noted was herpes simplex progenitalis rule out chancroid and chancre. In November 1968, the Veteran was treated for a urinary tract infection. The impression noted was non-specific urethritis. The Veteran underwent gonococci smears in December 1968 in connection with a urinary tract infection. The impression noted was gonorrhea for which the Veteran was treated with antibiotics. In February 1969 and April 1969, the Veteran was seen for a possible urinary tract infection. Gonococci smears were taken. The impressions noted were non-specific urethritis for which the Veteran was treated with antibiotics. During the period the Veteran was in Germany, in January 1970, the Veteran complained of a urethral discharge. It was noted that the Veteran had had frequent sexual contacts in the past months. A smear was taken. The impression noted was "urethritis, apparently not gonococcal" for which the Veteran was treated with antibiotics. The service treatment records and the October 1970 separation Report of Medical Examination neither showed a prostate disorder was identified during service nor identified a prostate disorder at separation. Other evidence included VA treatment records dated from September 1973 to August 2004. In April 1992, the Veteran reported that he thought he had a problem with his prostate gland like he did two months ago. He complained of pain in his rectum and painful urination. The examiner provided a diagnosis of proctalgia versus proctitis. The Veteran underwent a flexible sigmoidoscopy and colonoscopy which were normal. In May 1992, the Veteran complained of an inability to urinate on occasion and inability to defecate, which resolved spontaneously. The Veteran reported that he had a sexually transmitted disease in service in 1968. His urination had returned to normal but he experienced some urgency. The Veteran also claimed that he had an injury to his right kidney in service. The examiner indicated that the physical examination revealed a benign prostate. The Veteran was seen for a follow up in June 1992. It was noted that the Veteran's prostatitis/proctalgia had resolved. A December 1992 Service Treatment Plan showed that on a review of systems, the Veteran had no bladder complaints. Thereafter, the Veteran underwent an Agent Orange Registry Examination in July 1995. On review of the Veteran's genitourinary system, he complained of nocturia times one, dribbling (sometimes), and a history of gonnorhea with discharge in Vietnam. No prostate disorder was diagnosed. The Veteran underwent another Agent Orange Registry examination in December 1998. On review of the Veteran's genitourinary system, he complained of nocturia times one and a history of gonnorhea. An examination of the Veteran's prostate was normal. No prostate disorder was diagnosed. Thereafter, an August 1999 record concerning another medical problem showed that a physical examination also revealed no prostatic enlargement. An October 2001 Health Promotion Education screening indicated that the Veteran was educated on the risks and benefits of regular screening for prostate cancer. The Veteran complained of intermittent chronic pain in his groin area. In July 2002, the Veteran inquired about his prostate and lower gastrointestinal area, and in August 2002, he requested a prostate examination. The physical examination revealed a slightly enlarged prostate but his prostate specific antigen (PSA) value was 0.96. An August 2003 examination revealed a slightly enlarged prostate. The Veteran denied any bladder complaints in May 2004. Additionally, in a January 2002 statement, the Veteran complained that he had "tested positive" for Agent Orange twice, that he had pain in his crotch from time to time, and that his kidneys were not doing well. In an August 2003 statement, the Veteran reported that the pain in his groin was an after effect of exposure to Agent Orange which resulted in an enlarged prostate gland. He maintained that he had scar tissue inside his rectum from "festilisium," and that he experienced intense pain between his testicles and rectum. In regard to a kidney condition, the Veteran maintained that he had experienced a sudden and uncontrollable need to urinate frequently for the past 10 to 12 years. He maintained that this condition had existed and was a residual effect from his exposure to Agent Orange. The Veteran's claim to reopen was received in November 2006. Relevant evidence received subsequent to the April 2006 rating decision includes the Veteran's June 2007 notice of disagreement, in which he noted that it was his "contention that [his] prostate condition ha[d] been a problem ever since service." Thereafter, at the March 2008 Board hearing, the Veteran's representative indicated that it was the Veteran's contention that exposure to Agent Orange caused his prostate disorder. In response to the question of whether the Veteran had been diagnosed with prostate cancer, the Veteran responded that he was due to undergo another examination of his prostate while the Veteran's representative responded that the Veteran had an enlarged prostate. The Veteran then testified that he had had an enlarged prostate ever since "a little before" the age of 20. The Veteran then added the following: "When I went to Germany, you have to have your physical over there. That was the first time it was noticed." When asked, however, he confirmed that he had never been diagnosed with prostate cancer. In connection with the prostate claim, the Veteran further complained that he wanted to get a full night's sleep and explained that "[y]ou have to get up and you have to use the bathroom at least twice a night." Additionally, the November 2008 VA skin examination report shows that the Veteran reported that when he was in Germany, he was found to have an enlarged prostate gland and he maintained that at 19 he was not supposed to have that disorder. Other evidence includes VA treatment records dated from March 2005 to October 2010. An April 2005 discharge summary noted a diagnosis of benign prostatic hypertrophy. In October 2006, the Veteran was seen in the emergency room for a possible enlarged prostate. The Veteran's complaints included nocturia times two. It was noted that the Veteran's PSA was 1.60. The physical examination revealed a 1+ enlarged prostate. The assessment noted was suspected acute prostatitis for which the Veteran was prescribed an antibiotic (Cipro). In an October 2006 VA letter to the Veteran, it was reported that the Veteran's recent PSA test was normal at 1.60 which was a "good result." Another October 2006 record indicated that the Veteran's prostatitis was responding nicely to Cipro. VA treatment records thereafter showed continued assessments of acute prostatitis for which the Veteran took antibiotics and a past medical history of benign hypertrophy of the prostate without urinary obstruction. VA treatment records in Virtual VA dated from September 2010 to February 2012 show a past medical history of benign hypertrophy of the prostate without urinary obstruction. Lastly, records from the SSA showed the Veteran was receiving disability benefits for back and heart disabilities. Of the evidence added to the record since the April 2006 rating decision, the Veteran has argued more specifically that his prostate disorder was noted in service and had existed since service. This contention can be construed as more specifically raising a continuity of symptomatology theory of entitlement. The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Benign hypertrophy of the prostate is not an enumerated disease. See 38 C.F.R. § 3.309(a). While the Veteran's lay statement standing alone cannot possibly support a basis for granting service connection, there is no specific indication in the Walker decision that the holding reaches lay statements that support a theory of continuity of symptomatology for purposes of deciding whether a VA examination and opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Moreover, the Board is cognizant that lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Veteran is competent to report that he was informed in service that he had an enlarged prostrate. As noted above, for purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the Veteran's lay statements generally are to be presumed credible. Kutscherousky, 12 Vet. App. at 371. VA, however, is not required to consider the patently incredible to be credible. Duran, 7 Vet. App. at 220. Additionally, the concurring opinion in the Shade decision specifically pointed out that if the evidence supporting the claim is insufficient to trigger the duty to assist when the old and new evidence is considered together, then the new and material standard has not been met and the claim should not be reopened. Shade, 24 Vet. App. at 123. It was further noted that reopening a claim only to deny it without providing assistance would be a hollow, technical decision and that there was no reason to expend agency resources on a semantic determination that is not tied to a meaningful procedural duty. Id. at 123-24. The Board may also weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows a reasonable inference to be drawn by the Board as fact finder). For this negative inference to be made, the Board must make two findings-first, that the record being evaluated is complete in relevant part, and second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred. Id. at 440. Here, the Veteran's service treatment records are complete and it is an indisputable fact that these records do not show that the Veteran was treated for or diagnosed with a prostate disorder during service. The Veteran's contacts with the service medical departments were numerous during which time his genitourinary complaints were evaluated. An enlarged prostate would ordinarily have been recorded had it been present. Post-service medical records while date beginning in 1973 do not show a prostate disorder until decades after the Veteran's discharge from service. Consequently, the Veteran's statements since the April 2006 rating decision would not trigger the duty to afford him a VA examination and nexus opinion if the Board were to reopen the claim. For these reasons, the Board does not find that the Veteran's statements constitute new and material evidence. In addition, VA treatment records added to the record showing a prostate disorder are cumulative and redundant of prior VA treatment records which similarly showed a prostate disorder. The SSA records are irrelevant. There continues to be no evidence showing the Veteran is diagnosed with prostate cancer, and there is no evidence sufficient to trigger the duty to assist when the old and new evidence is considered together. Therefore, the Board finds that new and material evidence has not been received to reopen the claim of entitlement to service connection for a prostate disorder. ORDER New and material evidence not having been received to reopen the claim of entitlement to service connection for a prostate disorder, to include as due to exposure to an herbicide agent, the appeal is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs