Citation Nr: 1322771 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 12-26 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from November 1953 to September 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2010 and subsequent rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to appear for a hearing at the RO before a Veterans Law Judge (VLJ) in June 2013. However, he failed to report for this hearing and provided no explanation for his failure to report. His hearing request, therefore, is deemed withdrawn. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning was last in denied by the RO in a March 2004 rating decision. The Veteran was notified of the decision and of his appellate rights by way of notice sent in March 2004, but did not file an appeal. 2. The evidence received since the March 2004 rating decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning, does not trigger the duty to assist by providing a medical opinion and does not raise a possibility of substantiating the claim. CONCLUSION OF LAW The evidence received since the March 2004 decision is not new and material; the claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning 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 CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Specific to requests to reopen, a Veteran must be informing him of the bases for the prior denial and the evidence needed to reopen these claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the present case, considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the petitions to reopen decided below has been accomplished. In the November 2010 letter, the Veteran was notified of the criteria for reopening his claim and the criteria for establishing the underlying claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning. Kent. In addition, the letter informed him of the bases for the prior denial and the evidence needed to reopen the claim. Id. The letter also advised the Veteran of the five Dingess elements, to specifically include that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman, 19 Vet. App. at 484. Although a document fully meeting the VCAA's notice requirements was not provided to the Veteran before the initial rating decision on appeal, the claims were fully developed and then readjudicated in a September 2012 statement of the case which was after all required notice was provided. Accordingly, the Board finds that any arguable lack of full preadjudication notice in this appeal has not, in any way, prejudiced the Veteran. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board also finds that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the Veteran in connection with the claims decided below. First, the Veteran's service treatment record (STRs) are on file, and the claims file contains all available records from the VA and non-VA sources the Veteran identified as having relevant records. The Veteran has not identified (nor has his service representative), and the file does not otherwise indicate, that there are any additional pertinent records that should be obtained before the appeal is adjudicated by the Board. Absent the submission of this type of evidence to satisfy the new-and-material-evidence requirement for reopening this claim, VA is not obligated to schedule him for a VA compensation examination. 38 C.F.R. § 3.159(c)(4)(C)(iii). In light of this evidentiary development, the Board finds that all necessary facts have been properly developed in regard to the Veteran's claims, and no further assistance is required in order to comply with VA's statutory duty to assist in the development of evidence necessary to substantiate the claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In conclusion, because all duties to notify and assist have been satisfied, the Board will proceed with consideration of the merits of the appeal. II. Analysis Compensation benefits may be awarded for a "qualifying additional disability" under the provisions of 38 U.S.C.A. § 1151 in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. To constitute a "qualifying additional disability," the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment or examination or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. 38 C.F.R. § 3.361 (2012) provides that in determining whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Proximate cause also may be established where the Veteran's additional disability was an event not reasonably foreseeable - to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). See 38 C.F.R. § 3.361(d)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran seeks to reopen his claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning. Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record 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. 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). The Federal Circuit has found that § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim. Id. at 1368. The Federal Circuit noted the Board's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. In April 1992, the Veteran filed a claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning. He noted that he was hospitalized at a VA facility from April 23, to May 2, 1990 for a small bowel resection, and readmitted at another VA facility from May 4, to May 25, 1990. Free mercury was left in his bowel during the initial operation. Poison control was called in and they stated no treatment was necessary and the mercury would pass out of his system. April and September 1995 rating decisions denied the claim because no residuals disability due to the mercury ingestion was shown. The Veteran was notified of the decisions and of his appellate rights by way of letters sent to him in April and September 1995. He did not appeal the rating decisions and they became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). In June 2001, he petitioned to reopen this claim. In March 2003, the RO denied reopening in March 2003 and March 2004. The RO considered a VA treatment note dated in June 2003 in which the environmental safety officer reviewed the Veteran's records and found no evidence of mercury exposure or contamination during his colon surgery. The Veteran was notified of the decisions and of his appellate rights by way of letters sent to him in March 2003 and March 2004. He did not appeal the rating decisions and they became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). Although 38 C.F.R. § 3.156(b) (2012) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim, in this case, no pertinent evidence was received within a year of the unappealed March 2004 RO rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The RO received the instant petition to reopen the claim in May 2010. The Board notes that some of the evidence received since the March 2004 rating decision is new, as it was not previously considered the RO; however, it is not material. Since the lack of evidence showing a current disability due to mercury ingestion was the basis for the denial of the claims in the prior rating decisions, any new evidence must relate to this unestablished fact or at least trigger the duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. at 117. Here, none of the newly submitted evidence shows that the Veteran has current residuals due to mercury ingestion. In fact, the Veteran submitted a letter from Ronald S. Sims, M.D., dated in July 2003, in which he stated he reviewed the Veteran's records; and given the negative screens for mercury, there would be no contemplation of using any mercury-specific treatment. Further, none of the newly submitted evidence, including the Veteran's statements, triggers the duty to assist by providing a medical opinion. Accordingly, new and material evidence to reopen the claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning has not been received. The claim is therefore not reopened. ORDER New and material evidence not having been received to reopen a claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to the residuals of mercury poisoning, the Veteran's appeal is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs