Citation Nr: 1323731 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 12-08 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for prostate cancer. REPRESENTATION Appellant represented by: Jeffrey E. Marion, Attorney ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active service from July 1954 to August 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the Veteran's request to reopen a claim for service connection for prostate cancer. In his June 2012 brief, the Veteran's attorney claimed that the Veteran raised other service connection claims in his January 2010 notice of disagreement. The Board's review of the claims file does not disclose any notice of disagreement dated in January 2010. However, in an October 2009 notice of disagreement submitted to an earlier rating decision, the Veteran noted he had suffered several health issues in addition to prostate cancer and disagreed with the view that none of his health issues was related to service. Therefore, although neither the Veteran nor his attorney have separately filed claims for these issues, the Board finds that the following issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ): service connection for the residuals of a heart attack, service connection for chronic obstructive pulmonary disorder, service connection for impotence, and service connection for incontinence. Therefore, the Board does not have jurisdiction over those issues, and they are referred to the AOJ for appropriate action. 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). FINDINGS OF FACT 1. A February 2009 rating decision denied service connection for prostate cancer. The Veteran did not perfect his appeal of that decision and the February 2009 decision is final. 2. The additional evidence presented since the February 2009 rating decision is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 2009 rating decision denying service connection for prostate cancer is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. As new and material evidence has not been received, the criteria for reopening the claim for service connection for prostate cancer have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Proper notice from VA must, prior to the initial decision on a claim by the AOJ, indicate any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his attorney has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy that requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). A review of the December 2010 notice letter shows that the RO notified the Veteran that he would need to submit new and material evidence as he had been previously denied service connection for prostate cancer. The December 2010 letter specifically defined new and material evidence. The letter also advised the Veteran of why the claim was denied earlier and what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. Accordingly, the Board finds that VA has complied with its duties to notify. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA's duty to notify has been satisfied in this matter. The December 2010 correspondence also notified the Veteran of the criteria for establishing either presumptive or direct service connection for prostate cancer, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. That letter addressed all notice elements before the initial adjudication of the claim in the May 2011 rating decision now on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination). The Board finds that the notice requirements pertinent to the issue on appeal have been met. Service medical records, service personnel records, and identified private treatment records of the Veteran have been obtained through the efforts of VA, the Veteran's attorney, or the Veteran himself. The Board notes that a VA examination or medical opinion in connection with a claim sought to be reopened cannot be provided until a claim is successfully reopened. 38 C.F.R. § 3.159(c)(4)(iii) (2012). Therefore, the Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. 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). New and Material Evidence The Veteran's claim for service connection for prostate cancer was denied in a February 2009 RO rating decision. While the Veteran filed a notice of disagreement in October 2009, he withdrew his appeal of that denial in both June and August 2010 written submissions. An attorney entered an appearance the following month and his September 2010 correspondence was interpreted as a claim to reopen as neither the attorney nor the Veteran ever revoked the Veteran's withdrawal of his appeal of the February 2009 rating decision. Thus, the Veteran did not timely perfect the appeal of that decision following withdrawal and it was final as of February 2010. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.302 (2012) (if a valid notice of disagreement is not filed within one year of rating decision, the rating decision shall become final). Accordingly, the Board must now consider the question of whether new and material evidence has been received to reopen that claim because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate it de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). At the time of the February 2009 rating decision, the RO denied the claim for presumptive service connection for prostate cancer, to include as due to exposure to herbicides, on the basis that the evidence did not show the Veteran's physical presence within the land borders of Vietnam, including inland waterways, during service or that he was diagnosed with prostate cancer within one year of discharge in 1973. In addition, direct service connection for prostate cancer was denied on the basis that there was no medical evidence of prostate cancer during service and no evidence established a connection between prostate cancer and any injury, disease or event during service. The evidence at the time of the February 2009 rating decision consisted of the Veteran's service medical records; certified copies of the Veteran's various service separation forms; service personnel records; information from the National Personnel Records Center (NPRC); private medical records from the Scripps Memorial Hospital in La Jolla, California, dated in January 2004, January 2006 to August 2006, and April 2008, and private laboratory records dated in 1992; and written submissions from the Veteran. The service medical records were negative for evidence of any prostate cancer or treatment for exposure to herbicides. The Veteran's July 1973 discharge examination specifically noted that his prostate was within normal limits. A service separation form notes that the Veteran, who had served in the Navy, received the Vietnam Service Medal, but there is no indication from the service records that the Veteran had ever set foot within the landmass of the Republic of South Vietnam or was on the inland waterways. The NPRC reported that it was unable to determine whether the Veteran had ever served in Vietnam, that he was attached to units that could have been assigned to ship or shore, and that his record provided no conclusive proof of in-country service. A June 1966 service personnel record noted that the Veteran was eligible for the Vietnam Service Medal for service with the VF-213 embarked in the USS Kitty Hawk for the period from November 26, 1965 to June 13, 1966. A June 1970 service personnel record noted that the Veteran was eligible for one bronze star on his Vietnam Service Medal for the campaign period from November 2, 1968, to a date to be announced. In a June 2008 written statement, the Veteran said that he was treated for impotence in October 1992 and that he was monitored at a private hospital for years for prostate cancer indications. He also stated that prostate cancer developed at an early age as a result of unexplained exposure, if actual presence in Vietnam was the only requirement for claiming exposure to herbicides. In another June 2008 statement, the Veteran reported that he was the line chief aboard the USS Hancock between 1969 and 1970 and that he was convinced his exposure to herbicides was exacerbated by direct contact with the aircraft and personnel returning from flight operations within Vietnam. He said that washing and servicing those aircraft was his responsibility. The private hospital records that were associated with the Veteran's claims file before the February 2009 rating decision contained no references to prostate cancer, although a January 2004 private hospital record noted admission for diverticular bleeding, and extensive sigmoid diverticulosis with no evidence of malignancy. Low testosterone was noted on an October 1992 lab report. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). In determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The evidence added to the claims file since the final February 2009 rating decision includes private medical records from Scripps-Ximed Medical Center dated in January 2004 and May 2007; private hospital records from the Scripps Memorial Ximed Hospital dated in May 2007 and May 2009; private medical records from Scripps Memorial Hospital dated from January 2004 to August 2011; private medical records from Dr. W.L.I. dated from March 2011 to May 2011; private medical records from Kaiser Permanente dated in November 1995, May 1998, and from February 2002 to December 2002; and written statements by the Veteran and his attorney. This new evidence includes the Veteran's October 2009 notice of disagreement in which he reported that he was the line chief on a carrier flying A4 Skyhawk sorties over Vietnam. He said that the aircraft returned covered in dust and debris and that it was the responsibility of the men in his unit to wash and clean those aircraft, which they did without protective clothing. He believed the aircraft were exposed to herbicides while flying in the air saturated with the chemicals. He noted that in an effort to conserve water, they recycled the same water repeatedly. He also suggested that when he was airlifted from the USS Hancock after receiving orders for California on an undisclosed date that his plane had to land at an unknown airfield. He always thought that was in the Philippines, but wondered if that was an airfield in South Vietnam. The new hospital and medical records submitted after the February 2009 rating decision are extensive. The Board's review discloses that the medical records show treatment principally for heart disease and respiratory issues, such as chronic obstructive pulmonary disease and shortness of breath. In addition, November 1995 hospital records show a two-day admission for acute lower gastrointestinal bleeding. Private medical records dated in May 1998, November 2002, and December 2002 also show treatment for gastrointestinal bleeding. Those medical records did not refer to prostate cancer. An August 2011 record noted bladder discomfort after an abdominal aortic aneurysm repair. None of the records specifically refer to treatment of prostate cancer or when the Veteran was diagnosed with prostate cancer, although a history of prostate cancer is noted on several records after January 2006. The regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156(a) (2012); Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that the new evidence submitted by the Veteran does not relate to any unproven element of the previously denied claim. Moreover, the Board does not find that the new evidence provides a more complete picture of the circumstances surrounding the Veteran's service or his prostate condition. Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Veteran alleged direct contact with herbicides in a statement dated in June 2008 before his claim was originally denied in the February 2009 rating decision. The claim was denied because the evidence did not show the Veteran's physical presence within the land borders of Vietnam, including inland waterways, or that he was diagnosed with the disease within one year of discharge in 1973. In addition, there was no medical evidence of prostate cancer during service and no evidence established a connection between prostate cancer and any injury, disease, or event during service. Therefore, direct, presumptive, and proximate service connection were denied. The Veteran's October 2009 statement does not differ markedly from the June 2008 statement. He again explained that he and his men aboard ship washed and cleaned aircraft that flew sorties over Vietnam. He does not claim that these aircraft flew or dropped herbicides, only that they flew in the skies over Vietnam and must have been contaminated and he and his men must have been contaminated. He also speculated that instead of landing in the Philippines on his way home he might have landed in South Vietnam, but does not indicate why he now believes that is a possibility. This new evidence did not show the Veteran's physical presence within the land borders of Vietnam, or that he was diagnosed with prostate cancer within one year of discharge from service in 1973. Again there was no medical evidence of prostate cancer during service and no evidence established a connection between prostate cancer and any injury, disease or event during service. No competent evidence has been submitted relating a current prostate cancer disability or the residuals thereof to any incident of service, including exposure to herbicides during the time of the Vietnam War. Therefore, the Board finds that the low threshold for reopening the claim has not been met in this case. The Board acknowledges that the lay statements of the Veteran and the private medical records that have been added to the Veteran's claims folder constitute new evidence in the sense that they were not previously considered by VA decision makers. Nevertheless, the Board finds that the newly submitted evidence is not material as it does not pertain to any unestablished fact necessary to substantiate the Veteran's previously denied claim. The evidence does not at least raise the possibility that, when considered with other evidence of record, and when presumed credible for the purpose of determining whether it is material, it would trigger a duty to provide a medical opinion for the issue of entitlement to service connection for prostate cancer. Shade v. Shinseki, 24 Vet. App. 110 (2010). There is no new evidence that shows that the Veteran was ever within the borders of South Vietnam, the element missing at the time of the final February 2009 RO decision that would have entitled him to presumptive service connection. There is also no new evidence that shows that the Veteran was directly exposed to herbicides while aboard a Navy ship off the coast of Vietnam during that war. The Veteran contends in his October 2009 statement that the A4 Skyhawks were exposed to Agent Orange while flying in the air because that air was, he thought, contaminated. Further, he remembers on one occasion landing at an unknown airfield that he thought was in the Philippines, but in October 2009 contends was perhaps an airfield in Vietnam. The Board finds that in his October 2009 statement the Veteran was not offering evidence on those two questions, but providing conjecture or speculation. In support of this view, the Board notes that the Veteran twice during the following year wrote VA to withdraw his appeal that had begun with his October 2009 notice of disagreement. The Board notes that a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case the Veteran is not competent to provide evidence as to more complex medical questions, such as the diagnosis of prostate cancer that may be related to his service. While he may be competent to provide evidence of work with herbicides and his presence in Vietnam during service, the evidence as he has presented here is speculative. Even if it were presumed credible, it would not create a reasonable possibility of an allowance of the claim or create the need for further development. It is clear from the wording of his October 2009 statement that he was merely proposing, suggesting, or speculating at desired outcomes ("I contend the planes were exposed to" and "I thought it was the Philippines but . . . perhaps an airfield in South Vietnam"). The Board also notes that no treating provider or other physician in the voluminous medical record found in the claims file has related the Veteran's prostate cancer to his service. Nor has the Veteran submitted any medical opinion evidence that suggests such a nexus. Therefore, the Board finds that evidence is not material because it does not create a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been submitted and that the claim for service connection for prostate cancer is not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). ORDER As new and material evidence has not been received, the request to reopen the claim for service connection for prostate cancer is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs