Citation Nr: 1330718 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-12 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for a head scar. 3. Entitlement to service connection for a prostate disorder. 4. Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for benign prostatic hypertrophy, GERD, a skin disorder, and a head scar. In his April 2009 VA Form 9 (Substantive Appeal) the Veteran requested a hearing before the Board. In July 2013, he failed (without giving cause) to appear for such hearing on the date it was scheduled. [The Veteran had also initiated appeals of denials of service connection for posttraumatic stress disorder (PTSD) and depression. An August 2012 rating decision granted him service connection for PTSD with depression. Consequently, those matters are not before the Board.] In his March 2007 claim the Veteran sought service connection for stomach problems secondary to virus in Vietnam. The January 2008 rating decision on appeal considered this issue as limited to a petition to reopen a previously denied claim of service connection for GERD, and denied the petition to reopen. The Board finds this categorization of the issue not improper; although the Veteran identifies a new claimed etiology (a virus), the record does not show a diagnosis of a "stomach disorder" other than GERD. A March 1997 rating decision denied the Veteran service connection for benign prostatic hypertrophy (BPH). In the instant claim, received in May 2007, the Veteran sought service connection for a" prostate disorder"; the record showed September 1999 diagnoses of prostatitis and elevated PSA (in addition to benign prostatic hypertrophy). Consequently, the claim required de novo review. The Veteran has since submitted evidence showing he has prostate cancer (also a prostate disorder, and part of the claim). A March 1997 rating decision denied the Veteran service connection for skin cancer. His instant claim (filed in March 2007) sought service connection for a skin condition, and was adjudicated by the RO as a claim to reopen. Inasmuch as the record shows an actinic keratosis in May 2006 (a skin disorder other than skin cancer), this issue requires de novo review. The issue of service connection for a skin disorder is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if action on his part is required. FINDINGS OF FACT 1. A March 1997 RO rating decision denied the Veteran claim seeking service connection for GERD based essentially on findings that such disability was not manifested in, or shown to be related to, his service. 2. Evidence received since the March 1997 RO decision does not tend to show that the Veteran's GERD was manifested in service or is related to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for GERD; and does not raise a reasonable possibility of substantiating such claim. 3. A head injury in service is not shown; any current head scar was not manifested in, or shown to be related to, the Veteran's service, including as due to head injury therein. 4. The Veteran served in Vietnam during the Vietnam Era, and has a diagnosis of prostate cancer. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for GERD may not be reopened. 38 U.S.C.A. §§ 5108 , 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2013). 2. Service connection for a head scar is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. The Veteran's prostate cancer may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1116, 5107 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Regarding the prostate disorder claim, inasmuch as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. The Veteran was advised of VA's duties to notify and assist in the development of his claims for service connection for GERD and for a head scar and prior to their initial adjudications. A September 2007 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and also informed him of disability rating and effective date criteria. In addition, with respect to GERD, it provided the Kent-mandated notice required with claims to reopen. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's available service treatment records (STRs) are associated with the record, and postservice treatment records have been secured. The Veteran has suggested (in April and August 2009, respectively) that STRs should show he required stitches to the top and side of his head and sustained a head injury. Furthermore, the STRs do not include a service separation examination report. [Notably, he was discharged from service on the day of his return to the United States from Vietnam, suggesting the possibility that a separation examination was not conducted.] Regardless, as some of the Veteran's STRs may be lost, VA has a heightened duty to assist him in developing evidence to substantiate his claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). Another search for STRs in April 2012 proved fruitless. Furthermore, despite being asked to do so, the Veteran has provided sufficient identifying information regarding his alleged head injury and stitching in service. Consequently, alternate source records development by VA is not possible. The RO did not arrange for a VA examination/opinion as to the head scar claim. Absent credible evidence of a head injury in service and an objective evidence he has a head scar residual of such injury, even the low threshold standard for when an examination is necessary endorsed by the U.S. Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 79 (2006), is not met, and an examination to secure a nexus opinion in this matter is not necessary. Regarding GERD, the Board observes that because the claim has not been reopened, the duty to assist by securing a medical opinion is not triggered. 38 C.F.R. § 3.159(c)(4)(iii). Legal Criteria To establish service connection for a claimed disability, there must be evidence of a present disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain diseases (including prostate cancer) may be service connected on a presumptive basis as due to herbicide (Agent Orange) exposure in service if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Prior unappealed RO rating decisions are final based on the evidence of record at the time of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In Vargas-Gonzales v. West, 12 Vet. App. 321, 327 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and on Virtual VA (VA's electronic data storage system), with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Factual Background and Analysis New and Material evidence to Reopen a Claim of Service Connection for GERD A March 1997 RO rating decision denied the Veteran's claim of service connection for hiatal hernia (GERD), based essentially on findings that the disability was not manifested in or related to the Veteran's service (and noting that it was not a disability listed as related to exposure to herbicides. The Veteran did not appeal that decision, or submit new and material evidence in the year following. Therefore, it is final. The evidence of record in March 1997 included the Veteran's STRs which are silent for any complaints, findings, or diagnosis related to GERD. On February 1987 private evaluation, the Veteran complained that his stomach felt full. The assessment was possible peptic ulcer disease. In August 1987, he complained of severe nausea and epigastric discomfort over the past 3-4 weeks. GERD was diagnosed. Evidence received since the March 1997 rating decision includes a duplicate of the August 1987 private medical record and a September 1996 private medical record showing assessments of GERD and hiatal hernia. Because the Veteran's claim of service connection for GERD was previously denied based essentially on findings that it was not manifested in, or shown to be related to, his service for evidence to be new and material, it would have to be evidence not previously of record that relates to at least one of these unestablished facts, i.e., it would have to tend to show that that the Veteran's GERD was manifested in service or that it is otherwise related to his service. The August 1987 private medical record submitted is a duplicate of one that was in the record at the time of the March 1997 decision, and therefore is not new. The September 1996 private medical record is both cumulative (and not new) evidence, and not material evidence. It is cumulative in that it shows that the Veteran has ahs diagnosis of GERD (a fact previously established, and not in dispute). It is not material because it adds nothing to the record regarding a nexus between the Veteran's GERD and his service (the unestablished fact necessary to substantiate the claim). In summary, no additional has been received that provides new information and relates to the unestablished fact necessary to substantiate the Veteran's claim of service connection for GERD; no evidence submitted since the March 1997 RO rating decision is new evidence that tends to relate the Veteran's GERD to his service and raise a reasonable possibility of substantiating the claim. Therefore the evidence received since the March 1997 rating decision is not new and material, and the claim of service connection for GERD may not be reopened. Head Scar The Veteran's STR's are silent regarding a head injury or a head scar. In October 1996 he filed claims seeking service connection for various disability, and did not mention a head scar (or a head injury in service). The instant claim is his initial claim seeking service connection for a head scar (as a residual of a head injury in service). In April 2009, he indicated that in 1969 he required stitches to the top and side of his head (due to a machine gun mount accident). As noted above, he indicated that the injury and its treatment are documented in STRs from his service in Vietnam, but has not provided sufficient identifying information for alternate source records development). The Veteran has not submitted any medical record (or any other objective evidence) showing he has a head scar consistent with head trauma injury; nor has he identified any such record for VA to secure. The evidence of record does not show any of the threshold requirements needed to substantiate this claim. First of all, there is no credible evidence of a head injury in service. While it is now entirely implausible that such injury occurred and was either not documented or that a documenting record was lost, it is reasonable to assume that if there was a significant head injury in service resulting in a disabling/disfiguring scar the Veteran would have mentioned such injury/head scar disability when he filed his initial claim seeking service connection for various disabilities in 1997. His initial mention of such injury was in connection with a claim for compensation more than 35 years after service. His unsubstantiated account of such injury is obviously self-serving, and therefore not credible. See Pond v. West, 12 Vet. App. 341 (1999). Second, the record does not contain any medical document showing notation or diagnosis of a head scar, or any other objective evidence the Veteran has such pathology. The Board notes that a scar is a disability capable of lay observation by a layperson (such as the Veteran), and has considered whether an examination to determine whether or not he has such a scar is necessary. The Board finds that such examination is not necessary, as without credible evidence of a head injury in service, it could only establish that the Veteran now (more than 40 years postservice) has a scar (which could have been incurred many years postservice). It could establish the other factors needed to substantiate the claim, including that there was an injury in service. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim, and that service connection for a head scar is not warranted. Prostate disorder As was noted above, the Veteran seeks service connection for a prostate disorder, however diagnosed. A February 2013 private medical record shows that the Veteran has adenocarcinoma of prostate, diagnosed by biopsy. The Veteran's DD Form 214 shows that he served in Vietnam. Therefore, he is presumed to have been exposed to herbicides in the course of his service. Prostate cancer is included on the list of disabilities that may be service-connected on a presumptive basis as due to herbicide exposure, manifested in a Veteran who served in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Accordingly, the legal requirements for establishing service connection for prostate cancer are met; service connection for prostate cancer is warranted. ORDER Service connection for prostate cancer is granted. The appeal to reopen a claim of service connection for GERD is denied. Service connection for a head scar is denied. REMAND In his March 2007 claim considered in the rating decision on appeal, the Veteran sought service connection for a "skin condition". An unappealed March 1997 rating decision had denied his claim of service connection for skin cancer, and the January 2008 rating decision considered (and denied) the instant claim as one to reopen a claim of service connection for skin cancer (not addressing other skin disability shown). As the record (see May 2006 VA medical record) shows a diagnosis of actinic keratosis (a skin disorder not addressed in the March 1997rating decision), and the Veteran did not limit the instant claim to reopening the previously denied claim, the instant claim required de novo review (and related development). Consequently, there is a due process violation that requires corrective action. The case is REMANDED to the RO for the following: The RO should arrange for all necessary development, and thereafter adjudicate de novo the Veteran's 2007 claim of service connection for a skin disorder, however diagnosed (to include actinic keratosis). If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs