Citation Nr: 1328019 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-50 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection for diabetes mellitus, type 2, including as due to exposure to Agent Orange. 2. Whether new and material evidence has been presented to reopen the claim of for service connection for renal cell carcinoma, including as due to exposure to Agent Orange. 3. Whether new and material evidence has been presented to reopen the claim of service connection for colon polyps, including as due to exposure to Agent Orange. 4. Entitlement to service connection for arthritis of the back. 5. Entitlement to service connection for arthritis of the right shoulder. 6. Entitlement to service connection for arthritis of the left shoulder. 7. Entitlement to a compensable rating for bilateral foot fungus. 8. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and J. C. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION In June 2012, the Veteran filed a motion to advance the case on the Board's docket for good cause, which is granted. Accordingly, pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from August 1969 to August 1971. The issues or claims are before the Board of Veterans' Appeals (Board) on appeal of rating decisions in May 2009 and in May 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the case was remanded to afford the Veteran a hearing before a Veterans Law Judge. In December 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. Other Preliminary Matters In a statement in February 2010, the Veteran raised the claim of service connection for hypertension, which was previously denied by the RO in a rating decision in September 2005, and the new and material evidence claim is referred to the RO for appropriate action. The claims of service connection for arthritis of the back, for the right shoulder, and for the left shoulder, along with claims for increase for bilateral foot fungus and bilateral hearing loss are REMANDED to the RO via the Appeals Management Center in Washington, DC. The only claims decided in this decision are the new and material evidence claims for diabetes mellitus, renal cell carcinoma, and colon polyps. FINDINGS OF FACT 1. In a decision in June 2009, the Board denied the claim of service connection for diabetes mellitus; after the Veteran was notified of the decision and of his right to appeal the Board's decision to the United States Court of Appeals for Veterans Claims (Court), the Veteran did not file an appeal with the Court. 2. The additional evidence presented since the Board's decision in June 2009 is either redundant or cumulative or does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus. 3. In a decision in June 2009, the Board denied the claim of service connection for renal cell carcinoma; after the Veteran was notified of the decision and of his right to appeal the Board's decision to the United States Court of Appeals for Veterans Claims (Court), the Veteran did not file an appeal with the Court. 4. The additional evidence presented since the Board's decision in June 2009 is either redundant or cumulative or does not relate to an unestablished fact necessary to substantiate the claim of service connection for renal cell carcinoma. 5. In a decision in June 2009, the Board denied the claim of service connection for colon polyps; after the Veteran was notified of the decision and of his right to appeal the Board's decision to the United States Court of Appeals for Veterans Claims (Court), the Veteran did not file an appeal with the Court. 6. The additional evidence presented since the Board's decision in June 2009 is either redundant or cumulative or does not relate to an unestablished fact necessary to substantiate the claim of service connection for colon polyps. CONCLUSIONS OF LAW 1. The Board decision in June 2009, denying the claim of service connection for diabetes mellitus, is final and new and material evidence has not been presented to reopen the claim. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156, 20.1100 (2012). 2. The Board decision in June 2009, denying the claim of service connection for renal cell carcinoma, is final and new and material evidence has not been presented to reopen the claim. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2012). 3. The Board decision in June 2009, denying the claim of service connection for colon polyps, is final and new and material evidence has not been presented to reopen the claim. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a claim for service connection, namely: (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). In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). On the new and material evidence claims, the RO provided pre-adjudication VCAA notice by letter, dated in December 2009. The Veteran was notified of the type of evidence needed to substantiate the underlying claims of service connection for diabetes mellitus, renal cell carcinoma, and colon polyps, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified of the type of evidence necessary to reopen the claims, namely, new and material evidence and the basis for the previously denial of the claims. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. The VCAA notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of service connection claim); and of Kent v. Nicholson, 20 Vet. App. 1 (2006) (the elements of a new and material evidence claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The record includes service treatment records, VA records, and private medical records. On the new and material evidence claims, a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). As the claims are not reopened, a VA medical examination or medical opinion is not authorized under the duty to assist. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural History In a decision in June 2009, the Board denied the claim of service connection for diabetes mellitus, because diabetes mellitus was not present in service, diabetes mellitus was not causally related to an injury, disease, or event incurred in service, and diabetes mellitus was not due to exposure to Agent Orange as the Veteran did not serve in Vietnam. In a decision in June 2009, the Board also denied the claims of service connection for renal cell carcinoma and for colon polyps for the same reasons, namely, the disabilities were not present in service, the disabilities were not causally related to an injury, disease, or event incurred in service, and the disabilities were not due to exposure to Agent Orange as the Veteran did not serve in Vietnam. After the Veteran was notified of the Board's decisions and of his right to appeal the Board's decisions to the United States Court of Appeals for Veterans Claims (Court), the Veteran did not appeal the Board's decisions to the Court. And the Board's decisions are final. 38 U.S.C.A. § 7104(a). Evidence Previously Considered The evidence of record when the Board decided the claims in June 2009 consisted of service personnel records, service treatment records, VA and private medical records, and the Veteran's statements and testimony. The service personnel records show that the Veteran served on active duty from August 1969 to August 1971. His military occupational specialty (MOS) was amphibious tractor crewman and he served with the 1st Amphibian Tractor Battalion (1st AmTracBn), 3rd Marine Division. The service personnel records show that the Veteran departed from the United States by aircraft on August 12, 1970, and landed in Okinawa on August 13, 1970. He joined Headquarters and Service Company, 1st AmTracBn on August 18, 1970, which was redesignated as Company A, 1st AmTracBn in March 1971. The Veteran departed from Okinawa by aircraft on August 11, 1971, and arrived in the United States that same day. There is no record of service in Vietnam or evidence of sea or air travel to Vietnam. Except for the National Defense Service Medal, there was no decoration, medal, badge, commendation, citation, or campaign ribbon of service in Vietnam. The service treatment records, including the reports of entrance and separation examinations, contain no complaint, finding, history, treatment, or diagnosis of diabetes mellitus, renal cell carcinoma, or colon polyps. For the period from August 1970 to August 1971 the records show that the Veteran was seen at the Battalion Aid Station, 1st AmTracBn, in September 1970, November 1970, and December 1970, and in January 1971, February 1971, March 1971, April 1971, May 1971, and August 1971. Marine historical records show that the 1st AmTracBn and 3rd Marine Division left Vietnam in July 1969 and moved to Okinawa. The 1st AmTracBn was assigned to Camp Schwab, Okinawa. For the 12 months from August 1970 to August 1971, the 1st AmTracBn participated in training exercises, but not in the coastal waters of Vietnam or inland waterways of Vietnam. After service VA records show that in 2001 diabetes mellitus, type 2, was diagnosed. In March 2003, there was a two to three year history of rectal bleeding, and a screening colonoscopy showed a polyp in the colon, which was removed. Another colon polyp and a mass in the cecum were found on a colonoscopy in September 2006. Also a CT scan showed a mass on the right kidney. In October 2006, the Veteran had a right hemicolectomy to remove the cecal mass and a right nephrectomy to remove the mass from the right kidney. The pathological diagnosis of the cecal mass was villous adenoma. The pathological diagnosis of the kidney mass was renal cell carcinoma. In November 2007, several colon polyps were found on a colonoscopy. In December 2007 and in January 2008, it was noted by history that the Veteran served in Vietnam. In statements in February and March 2005, in August and October 2006, in January and May 2007, in April 2008, in January 2009, the Veteran stated that he was aboard a LSD in the coastal waters of Vietnam, where he was exposed to Agent Orange, when transporting troops to and from Vietnam. He stated that he disembarked in Vietnam. He stated that VA told him that his cancer was due to Agent Orange. In a statement in November 2008, the Veteran stated that he went to Vietnam on a LSD for about six to seven months in 1970. At a hearing in December 2008, in response to the question of whether he served in Vietnam or off the coast of Vietnam, the Veteran testified that he was off the coast of Vietnam. He testified that the amtrack went from the ship to the beach, carrying supplies and troops, that he stayed on the amtrack, and that he stepped foot on Vietnam. The Veteran stated that the amtrack stopped at the shoreline and that he did not stay on shore, but he might have got into the water. In February 2009, the Veteran stated that he was on a LST and that his amtrack transported equipment and troops to Vietnam, but he did not set foot in Vietnam. The Veteran stated that aboard ship he was exposed to Agent Orange in the air. At a hearing in April 2009, the Veteran stated that he was aboard ship off the coast of Vietnam for about three to six months. He stated that his duties were to carry troops from the ship to the beach or shore in an amtrack. He stated that when the ramp on the amtrack hit the beach he remained on the amtrack. Current Claims to Reopen The Board's decisions in June 2009 are final and may not be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108 and 7104(b). In October 2009, the Veteran filed the current claims to reopen. As the Veteran's claims were received after August 2001, the current regulatory definition of new and material evidence applies. New evidence means existing evidence not previously submitted to agency decision makers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Additional Evidence The claims of service connection for diabetes mellitus, renal cell carcinoma, and colon polyps due to exposure to Agent Orange were previously denied because the Veteran did not serve in Vietnam. The claims were also denied because the disabilities were not present in service and the disabilities were not otherwise related to an injury, disease, or event in service other than exposure to Agent Orange. In order to reopen the claims, new and material evidence must be presented that relates to an unestablished fact necessary to substantiate the claims, either, evidence of service in Vietnam or evidence of the presence of the disabilities in service or evidence that the disabilities are related to an injury, disease, or event in service other than exposure to Agent Orange. The additional evidence presented since the Board's decisions in June 2009 consists of VA and private medical records and the Veteran's statements and testimony. The VA records consist of VA records from October 2006, pertaining to a right nephrectomy and the diagnosis of renal cell carcinoma. This evidence is redundant, that is, identical to evidence considered by the Board in its decision in June 2009. And redundant evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). Other VA records from May 2008 to February 2011 and private medical records from January 2009 pertain to the history of either diabetes mellitus, renal cell carcinoma, or colon polyps. This evidence is supporting evidence of facts already established and considered by the Board in its decisions in June 2009, namely, the onset and diagnoses of either diabetes mellitus, renal cell carcinoma, or colon polyps. And cumulative evidence, supporting facts already established and considered, does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). In statements in February, March, and December 2009 and in February, May, September and November 2010 and in March and October 2011 and in testimony in December 2011, the Veteran related diabetes mellitus, renal cell carcinoma, and colon polyps to exposure to Agent Orange, which was in the air he breathed, while he served aboard ship off the coast of Vietnam and while in his amtrack transporting troops from ship to shore in Vietnam, during the Vietnam era. The Veteran stated that he did not set foot in Vietnam. The Veteran stated that a VA doctor told him he had Agent Orange [exposure]. The statements and testimony are supporting evidence of evidence previously considered and rejected by the Board in its decisions in June 2009, namely, the Veteran's statements in February and March 2005, in August and October 2006, in January and May 2007, in April 2008, in January 2009, in which the Veteran stated that he was in the coastal waters of Vietnam, where he was exposed to Agent Orange, while transporting troops from ship to shore in an amtrack. He stated that VA told him that his cancer was due to Agent Orange. In December 2008, the Veteran testified that he was off the coast of Vietnam and that his amtrack stopped at the shoreline and that he did not stay on shore, but he might have got into the water. In February 2009, the Veteran stated that he did not set foot in Vietnam and that Agent Orange was in the air he breathed aboard ship. In April 2009, the Veteran testified that when the amtrack hit the beach, the ramp was dropped and the troops disembarked, but he remained on the amtrack. The statements and testimony are supporting evidence of evidence previously considered and rejected by the Board in its decisions in June 2009, which is cumulative evidence and cumulative evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). As the additional evidence is not new and material, the claims of service connection for diabetes mellitus, type 2, renal cell carcinoma, and colon polyps, are not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). (The Order follows on the next page.). ORDER As new and material evidence has not been presented, the application to reopen the previously denied claim of service connection for diabetes mellitus, type 2, is denied. As new and material evidence has not been presented, the application to reopen the claim of service connection for renal cell carcinoma is denied. As new and material evidence has not been presented, the application to reopen the claim of service connection for colon polyps is denied. REMAND On the claim of service connection for arthritis of the back, the service treatment records show that in February 1970 the Veteran complained of lower back pain while lifting weights. The assessment was bilateral muscle spasm in the lumbar spine and sleeping on the floor was recommended. After service in October 2006, X-rays by VA showed arthritic changes in the spine. As the evidence of record is insufficient to decide the claim, a VA examination and medical opinion under the duty to assist is needed. On the claims of service connection for arthritis of the right and left shoulders, in December 2011, the Veteran testified that he was being seen in the VA pain clinic for shoulder problems. As the Veteran has identified relevant records, pertaining to the claims that are not in the record, VA has the duty to assist the Veteran in obtaining the records. In December 2011, the Veteran testified that his foot fungus and hearing loss were worse since he was last examined by VA. As the evidence suggests a material change in the disabilities, a reexamination under 38 C.F.R. § 3.327 is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain VA records from the New Albany VA Healthcare Center since February 2011. 2. Afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that degenerative changes of the spine by X-ray by VA in October 2006 are: a). The progression of the symptoms of muscle spasms in February 1970 or any other history provided by the Veteran of an injury, disease, or event in service other than exposure to Agent Orange or, b). A new and separate condition, which developed after service? The Veteran's file must be made available to the VA examiner. 3. Afford the Veteran a VA audiology examination to determine the current level of hearing loss. The VA examiner is asked to render an opinion on the effect that hearing loss has on the Veterans' occupational and daily functioning. 4. Afford the Veteran a VA examination to determine the level of impairment of the foot fungus. 5. After the above development, adjudicate the claims of service connection and the claims for increase. If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs