Citation Nr: 1326431	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  10-26 425	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been presented to reopen a claim of service connection for diabetes mellitus (DM) to include as secondary to claimed inservice exposure to herbicides, and if so, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran had active service from November 1965 to March 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  


FINDINGS OF FACT

1.  In July 2006, the RO denied service connection for DM to include as secondary to claimed inservice exposure to herbicides.  The Veteran did not appeal.

2.  Evidence submitted since the RO's July 2006 decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

1.  The RO's July 2006 rating decision which denied service connection for DM to include as secondary to claimed inservice exposure to herbicides is final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2012).

2.  New and material evidence has not been received since the RO's July 2006 rating decision; thus, the claim of service connection for DM to include as secondary to claimed inservice exposure to herbicides is not reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

With regard to claims to reopen finally disallowed claims, the VCAA requires notice of the evidence needed to reopen the claim, as well as the evidence necessary to establish the underlying benefit sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  Appropriate VCAA letters were sent in July and August 2009.  The letters, especially in combination, indicated the type of evidence and information needed to reopen and substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess.

The Veteran has been afforded a hearing before this Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked.  

Here, during the hearing, the VLJ did specifically note the basis of the prior determination or the elements that were lacking to substantiate the claim.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he/she identified any prejudice in the conduct of the Board hearing.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Regarding the duty to assist, the RO has obtained the Veteran's service, VA, and private treatment records.  In claims to reopen previously denied claims, assistance does not include providing a medical examination or obtaining a medical opinion unless new and material evidence has been submitted.  38 C.F.R. § 3.159(c)(4)(i).  Here, no examination is afforded the Veteran because, as discussed below, new and material evidence has not been submitted.  Therefore, no further examination seeking an opinion regarding the Veteran's disability is necessary to satisfy the duty to assist.

The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

New and Material

In a July 2006 rating decision, the RO denied service connection for DM to include as secondary to claimed inservice exposure to herbicides on the basis that he did not serve in Vietnam and was not exposed to Agent Orange during service and on the alternative basis that the evidence did not establish that DM was incurred in or caused by military service.  A notice of disagreement was not received within the subsequent one-year period.  

Further, additional evidence was not received within one year of that decision.  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 United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that 38 C.F.R. § 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, 1367-8 (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.  

Therefore, the RO's July 2006 rating decision is final.  38 U.S.C.A. § 7105.

Prior unappealed decisions are final.  However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

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).

According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  

Since the prior final decisions, evidence has been added to the claims file.  The additional evidence of record consists of private medical records which continue to show that the Veteran has DM, duplicate statements of the Veteran regarding his contention that his work as an aircraft mechanic about C-130 aircraft exposed him to herbicides inservice, and internet information regarding C-123 aircraft that purportedly exposed to herbicides.  

For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

Furthermore, the Federal Circuit has indicated that evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to grant the claim.  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

Subsequent to the RO's consideration of this appeal, the Court decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010).  In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.  

In this case, the submitted contentions of the Veteran, as noted, are duplicative of those previously of record.  The medical evidence confirms that the Veteran has DM, but does not relate that diagnosis to service/herbicides exposure during service which was the missing element at the time of the last final decision.  With regard to the internet information, this information indicated that C-123 aircrafts were used as cargo haulers and defoliant sprayers for Agent Orange.  In addition, this evidence cited to a physician associated with the University of Texas Medical School who opined that the C-123 aircraft veterans were exposed to Agent Orange just as much the Vietnam War ground soldiers, with adverse health effects.  However, the Veteran has consistently reported that he handled C-130 aircrafts, not C-123, so this evidence is not relevant to his situation.  

Since the evidence that was submitted is duplicative, cumulative, or not relevant to the claim at hand, it does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim.  Thus, new and material evidence has not been received since the RO's July 2006 rating decision and the claim of service connection for DM to include as secondary to claimed inservice exposure to herbicides, is not reopened



ORDER

The application to reopen the claim of service connection for DM to include as secondary to claimed inservice exposure to herbicides is denied.  




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs