Citation Nr: 1333741 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-03 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for loss of a kidney, secondary to renal cell carcinoma, claimed as due to exposure to herbicides. 2. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for an acquired psychiatric disorder, including PTSD and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1965 to December 1967. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO's December 2007 decision, and as continued in June 2008 and January 2009 decisions, found no new and material evidence to reopen the Veteran's previously denied service-connection claim for PTSD. Similarly, the RO's January 2009 rating decision found no new and material evidence to reopen the Veteran's service-connection claim for loss of a kidney, secondary to renal cell carcinoma, claimed as due to exposure to herbicides. However, the Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen the service-connection claims for PTSD and a kidney disability. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board has reopened the PTSD claim, as discussed below, and recharacterized it to include other psychiatric disorders that also have been claimed and diagnosed, particularly depression. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As such, the issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed May 2007 Board decision denied service connection for loss of a kidney due to renal cell carcinoma, because his renal cell carcinoma was not among the diseases for which presumptive service-connection is available based upon presumed herbicide exposure; a kidney disability was not incurred during service; and there was no evidence etiologically linking the Veteran's renal cell carcinoma, or resulting kidney loss, to active duty military service, including his presumed herbicide exposure. 2. None of the new evidence associated with the claims file since the May 2007 Board decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of service connection for a kidney disability. 3. The claim for service connection for PTSD was previously denied in an August 2005 rating decision. The RO notified the Veteran of the decision, and informed him of his right to appeal, but he did not timely appeal the decision. 4. Evidence received since the RO's August 2005 determination that denied of service-connection for PTSD is new and material in that it is not cumulative, was not previously considered by decision makers, and it raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The May 2007 Board decision that denied service connection for loss of a kidney, secondary to renal cell carcinoma, claimed as due to exposure to herbicides, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1100, 20.1104 (2013). 2. New and material evidence has not been received since that May 2007 denial to reopen a claim of entitlement to service connection for loss of a kidney, secondary to renal cell carcinoma, claimed as due to exposure to herbicides. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The August 2005 rating decision that denied service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.1103 (2013). 4. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156, 3.159 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies to the instant matters. The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b). These notice requirements apply to all five elements of a service-connection claim (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). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this decision, the Board is reopening the PTSD claim based on new and material evidence. There is consequently no need to discuss whether the Veteran has received sufficient notice insofar as the specific reasons for the prior final denial. Even if he has not, this is inconsequential and at most harmless error. See Kent v. Nicholson, 20 Vet. App. 1 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board, however, is remanding the underlying service-connection claim for additional development, rather than immediately readjudicating it de novo on the merits. With respect to the kidney disability issue, the Veteran was provided notice in October 2008 regarding what information and evidence is needed to substantiate his claim, to include why his claim was previously denied, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ. However, it appears that the principles of notice according to Kent, were not wholly fulfilled because the October 2008 notice misidentified the Veteran's prior final denial of the kidney disability as the March 2003 rating decision, whereas it should have identified the May 2007 Board denial of that issue. However, the Veteran has actively participated in the processing of his kidney disability claim, and the statements and hearing testimony submitted in support of his claim have indicated familiarity with the requirements for the benefits sought on appeal. Importantly, he has not made any pleading or allegation of insufficient VCAA notice or shown that any such error is unduly prejudicial, meaning outcome determinative of his claim. The party seeking to set aside a decision, the Veteran in this case, bears the burden of proving prejudicial error. Shinseki v. Sanders, 556 U.S. 396, 409 (2009). VA has also satisfied the duty to assist for the Veteran's issue of a kidney disability. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's available service treatment records and VA treatment records. There is no contention or indication of other outstanding records pertinent to his kidney disability. The Veteran was provided an opportunity to set forth his contentions before the undersigned during the March 2013 Board hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The undersigned identified the issues on appeal as involving the submission of new and material evidence to reopen the claim for service connection for loss of a kidney due to renal cell carcinoma. The undersigned solicited the Veteran to submit new and material evidence claim, particularly medical opinion evidence of a causal connection between his kidney disability and service. March 2013 Board Hearing Transcript (Tr.) at 6. Moreover, the hearing discussion did not reveal any available evidence not already submitted. During the pendency of the appeal, the Veteran was not provided with a VA compensation and pension (C&P) medical nexus opinion for the kidney disability. The duty to provide a VA examination for a medical nexus opinion only arises once there is new and material evidence to reopen a previous and finally decided claim. 38 C.F.R. § 3.159(c)(4)(iii). Since the Board finds no new and material evidence to reopen his claim for loss of a kidney, it follows that there is no requirement to have him examined for a medical nexus opinion. The Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Analysis-New and Material Evidence Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002). When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new" and "material." See 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as existing evidence not previously submitted. "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. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). The Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In Shade, the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. A. PTSD The record reflects multiple previous unappealed denials by the RO of the Veteran's claim for service connection for PTSD, initially in August 2004 and then continued by January 2005 and August 2005 rating decisions. A finally adjudicated claim is an application which has been allowed or disallowed by the AOJ, the action having become 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 U.S.C.A. §§ 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. The RO last denied the Veteran's claim for service connection for PTSD in August 2005 on the grounds that no credible supporting evidence existed reflecting the occurrence of an in-service stressor, or a confirmed, current diagnosis of PTSD. The RO notified the Veteran of the decision, and informed him of his right to appeal, but he did not timely appeal the decision. This denial of his PTSD claim became final based on the evidence at the time of the August 2005 decision. Furthermore, no new and material evidence was received during the period to file an appeal. The evidence before VA at the time of the final denial of PTSD in August 2005 consisted of the Veteran's service treatment records, post-service VA treatment records, and personal statements and hearing testimony. The newly received evidence includes records from VA treating clinical mental health treatment providers showing that the Veteran has been diagnosed with a DSM-IV diagnoses of PTSD. Consequently, the Board finds that the new evidence relates to an unestablished fact (current mental health disorder) and raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App at 117. The new VA treatment records amount to evidence that is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Here, while this new evidence may not be sufficient to ultimately grant the claim on its underlying merits, it does trigger the duty to provide a medical opinion, indeed, as the Board orders below. See Shade, 24 Vet. App. at 117. Such evidence is new and material, and the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 ; 38 C.F.R. § 3.156(a) . To this extent only, this appeal is granted. B. Kidney Disability In this case, the veteran contends that he was exposed to the herbicide Agent Orange during the Vietnam War, and that such exposure caused his renal cell carcinoma, for which he subsequently underwent a right nephrectomy and lost his right kidney. The RO's March 2003 decision denied the Veteran's service connection claim for loss of a kidney due to renal cell carcinoma. This March 2003 RO decision was later subsumed by a May 2007 Board decision. Although the Veteran was notified of his appellate rights with the May 2007 Board decision, there is no indication the Veteran perfected a timely appeal to the CAVC of that decision. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1100, 20.1104. Therefore, the Board must consider the evidence added to the record since the last final and binding Board decision in May 2007, which includes recent VA outpatient treatment records, the Veteran's personal statements, and Board hearing testimony in March 2013. See Evans v. Brown, 9 Vet. App. 273 (1996). The unappealed May 2007 Board decision denied service connection for loss of a kidney due to renal cell carcinoma, because his renal cell carcinoma was not among the diseases under 38 C.F.R. § 3.309(a) for which presumptive service-connection is available based upon presumed herbicide exposure; a kidney disability was not incurred during service; and there was no evidence etiologically linking the Veteran's renal cell carcinoma, or resulting kidney loss, to active duty military service, including his presumed herbicide exposure. In particular, in support of his application to reopen his claim, additional post-service VA treatment records dated were obtained. Although these additional medical records show treatment for nephrolithiasis, renal calculi and an unidentified renal mass, these additional records do not contain medical opinion evidence that etiologically links any current residuals of loss of a kidney to his active duty military service. This additional medical evidence is "new" in that it was not previously before agency decision makers at the time of the final May 2007 Board decision. However, none of this medical evidence is "material" for purposes of reopening the claim of entitlement to service connection for the kidney claim. The additional medical records do not raise a reasonable possibility of substantiating the claim. Further, the Board has considered his new statements at his personal hearing before the undersigned in March 2013, wherein he asserted a history of back pain in service as related to his kidney problems. While his assertions of in-service low back pain are competent and presumed credible, nonetheless, these lay statements merely reiterate arguments considered by the Board when earlier denying this claim. The Board's May 2007 denial had expressly acknowledged his history of back pain during service, but found no competent medical evidence of record that showed his renal cell carcinoma was due to or initially manifested by the low back pain the Veteran exhibited during service (see May 2007 Board decision at 8-9). Aside from the fact that these assertions are essentially cumulative of previously considered contentions, the Board emphasizes that testimony simply reemphasizing the position previously considered in the prior final decision is not new or sufficient to reopen the claim. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (noting that lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). Indeed, arguments based on what amounts to the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006). The Board finds that the Veteran's additional medical records and personal statements do not provide any relevant details regarding his claimed etiological link from any current kidney disability to in-service complaints of low back pain that were not known or advanced at the time of the prior denial. Finally, the Board notes that kidney disease has not been added to the list of diseases for which presumptive service connection based on exposure to herbicides may be granted. Because the evidence does not establish a fact necessary to substantiate the claim or trigger any duty to assist, the Board cannot presently reopen the claim for service connection for loss of a kidney due to renal cell carcinoma. 38 C.F.R. § 3.156(a). Therefore, it is the determination of the Board that new and material evidence has not been submitted with regard to the kidney claim. The claim for service connection for loss of a kidney is not reopened and the benefits sought on appeal with regard to that claim remain denied. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened; the appeal is allowed to this extent. As new and material evidence has not been received, the claim for service connection for loss of a kidney, secondary to renal cell carcinoma, claimed as due to exposure to herbicides, is not reopened. REMAND Additional development is needed prior to disposition of the Veteran's reopened claim for PTSD. Having reopened the PTSD claim, the Board recharacterizes it to include other psychiatric disorders that also have been claimed and diagnosed. See Clemons, 23 Vet. App. at 5. In particular, VA treatment records detail ongoing treatment for his acquired psychiatric disorder, with recent Axis I diagnoses of both PTSD and depression, apparently due to military service in Vietnam, including his reported in-service traumatic stressors. In light of the cumulative record, the Veteran needs to undergo a VA examination to determine the nature and etiology of his present acquired psychiatric disorder, including PTSD and depression. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination and medical opinion to determine the nature and etiology of any current acquired psychiatric disorder. The entire claims file (i.e., both the paper claims file and any records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should perform any diagnostic tests and evaluation deemed necessary. The examiner should respond to the following: (a) The examiner must confirm the existence of any current acquired psychiatric disorders, including PTSD and/or depression. (b) For the current Axis I PTSD diagnosis, opine whether it is at least as likely as not (50 percent probability or greater) that it is attributable to any in-service stressor. Please specify the in-service stressor or stressors (if any) upon which that diagnosis is based. (c) Exclusive of PTSD, if the examiner confirms the existence of any other currently diagnosed psychiatric disability (whatever the specific diagnosis), opine whether it is at least as likely as not (50 percent probability or greater) that it is attributable to an event, injury, or disease from the Veteran's active military service, to include any in-service stressor. Comprehensive explanations for all opinions must be included in the examination report. If the examiner cannot provide the needed opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 2. Then readjudicate the issue on appeal in light of all evidence of record, to include any additional evidence. If this claim is not granted in full, send the Veteran a supplemental statement of the case and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ PAUL SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs