Citation Nr: 1333182	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  09-27 715	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Whether new and material evidence sufficient to reopen a previously denied claim for entitlement to service connection for prostate cancer has been received.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Chance, Associate Counsel



INTRODUCTION

The Veteran served on active duty with the United States Marine Corps from May 1968 to May 1970, to include a tour of duty in the Republic of Vietnam.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which last denied service connection for prostate cancer on the basis that no new and material evidence had been received to reopen a previously denied claim that has become final.

By way of history, the Board notes that a January 1997 rating decision initially denied service connection for prostate cancer on the merits. No timely Notice of Disagreement was filed, therefore the January 1997 decision became final. 

The Veteran submitted the current claim to reopen in July 2008. Later, the aforementioned January 2009 rating decision was issued. The Veteran filed a timely Notice of Disagreement in February 2009, and a Statement of the Case was issued in June 2009 denying service connection, finding that no new and material evidence had been received. Subsequent Supplement Statements of the Case were issued in July and August 2009, finding that no new and material evidence had been received. Consequently, the Board will review the issue of whether new and material evidence has been received.

Although the Veteran initially requested a Travel Board Hearing, he later cancelled his request and as such his request is considered withdrawn.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either substantively duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  In January 1997, the RO originally denied the claim of entitlement to service connection for prostate cancer finding that there was no current disability. No timely Notice of Disagreement was filed in response to the January 1997 rating decision.

2.  The evidence received and associated with the claims file since the January 1997 rating decision is cumulative and redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for prostate cancer, and does not raise a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The January 1997 rating decision that denied service connection for prostate cancer is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013).

2.  As new and material evidence has not been received, the claim for service connection for prostate cancer is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  An August 2008 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an August 2009 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

Specific to requests to reopen, a claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006).Additionally, the August 2008 letter provided the Veteran with notice in accordance with Kent. As this letter was sent prior to the January 2009 adjudication of the claim, the Board finds that the duty to notify was satisfied.

The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records, VA medical treatment records from the Columbia VAMC, and private treatment records have been obtained; he did not identify any private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran's Social Security Administration disability claim was disallowed on the basis of the Veteran's employment and income. No medical records were available in Social Security Administration's database. 38 C.F.R. § 3.159(c)(2).  The Veteran has not been clinically diagnosed with a current disability of prostate cancer, consequently, no VA examination is necessary under the circumstances of this case. See McLendon v. Nicholson, 20 Veteran. App. 79, 81 (2006).

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Accordingly, the Board will address the issue on the merits.

New and Material Evidence Analysis

In January 1997, the RO denied the Veteran's original claim of entitlement to service connection for prostate cancer, finding that there was no evidence of a clinical diagnosis. In a January 2009 rating decision, the RO determined that the requisite new and material evidence had not been received to reopen the Veteran's previously denied claim for entitlement to service connection for prostate cancer. The Veteran submitted a timely Notice of Disagreement in response to the January 2009 rating decision.

The evidence considered by the RO in January 1997 consisted of service treatment records from 1968 to 1970 that were negative for any complaints, treatment, or diagnosis for prostate cancer and only noted a pre-existing surgical removal of the right testicle and an isolated treatment for burning during urination for which antibiotics were prescribed and yielded no complaints during a follow-up visit. The evidence also consisted of a letter from VA to the Allendale Correctional Institution requesting any medical records for the Veteran, for which no response was received. The basis for the denial was that there was no record a diagnosis of prostate cancer subject to service connection. The Veteran was provided notice of that decision in January 1997, but did not submit a Notice of Disagreement within one year of that notice. 

An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, becomes final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d) (2012).

In July 2008, the current claim to reopen was received by the RO.

The new evidence considered by the RO a January 2009 rating decision consisted of private medical records from Greer Doctor's Care From December 2007 to July 2008, VA treatment records from the Columbia VAMC from August 1999 to July 2001, and various written statements from the Veteran that did not address the reason for the previous denial-absence of a current prostate cancer disability. The basis for the January 2009 denial was that none of the newly received evidence showed a diagnosis of prostate cancer and therefore was not considered to be new and material. While the Greer Doctor's Care records showed a condition of hematuria, which is not considered to be a disability for VA purposes, they specifically denied a diagnosis of prostate cancer. Therefore, the evidence was against the Veteran's claim for service connection for prostate cancer, and negative evidence is never considered to be new and material evidence because it does not help substantiate that Veteran's claim. The Veteran was provided notice of such in January 2009 and filed a timely Notice of Disagreement in February 2009.

An RO determination as to whether evidence is "new and material" for purposes of reopening is subject to de novo adjudication by the Board. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). 

The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). 

Under 38 C.F.R. § 3.156(a), as amended, 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 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) (2012).

The prior denials of the claim had been essentially based upon the finding that there was no clinical evidence of a current diagnosis of prostate cancer. Accordingly, for evidence to be new and material in this matter, it would have to tend to show that the Veteran has current symptomatology indicative of prostate cancer or a current diagnosis prostate cancer.

The additional evidence received since the January 2009 rating decision includes various written statements by the Veteran with attached copies of documents about benefit programs for veterans and recession, Social Security Administration correspondence, personal income information, and test results from the Cancer Association from April 2009.

Assuming its credibility, all the evidence received since the January 1997 denial is cumulative and redundant and in some instances, totally irrelevant to the Veteran's claim. Many of the written statements submitted by the Veteran were ambiguous, illegible, and appeared not to be relevant to the claim for service connection for prostate cancer nor to missing clinical diagnosis of such. The Social Security Administration (SSA) correspondence illustrated that the Veteran's claim for disability benefits was disallowed due to his work status and income. VA requested any medical records in SSA's possession used to make their determination and received a response indicated that no such records existed. Further, the documentation submitted by the Veteran regarding his income is irrelevant to his claim for service connection for prostate cancer. The Greer Doctor's Care records from 2008 show PSA test results of 0.4 ng/mL and specifically state that there is "no evidence of prostate cancer yet." At best, the Greer Doctor's Care records are negative evidence directly against the Veteran's claim. The VA medical records only show consultations and treatment for bloody urine and stool in the past, however test results yielded normal findings. The Cancer Association evidence only shows that the PSA test results in April 2009 were 0.526 ng/mL and that the Veteran was instructed to see his physician regarding them. No further evidence has been received. None of the evidence relates to the unestablished fact necessary to substantiate the claim-a current diagnosis; nor does it raise a reasonable possibility of substantiating the claim of entitlement to service connection for prostate cancer.

The Board finds that the noted evidence received subsequent to the RO's January 1997 rating decision is not new and material as it does not provide a clinical diagnosis of prostate cancer. As a result, the requirements to reopen the claim of entitlement to service connection for prostate cancer have not been met. Accordingly, the Veteran's claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. & 2012); 38 C.F.R. § 3.156, 3.159, 3.304 (2013).


ORDER

New and material evidence has not been received to reopen a claim for service connection for prostate cancer; the appeal is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs