Citation Nr: 1334046 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-01 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence was received with respect to a claim of entitlement to service connection for bladder cancer. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied a petition to reopen the claim. FINDINGS OF FACT 1. A claim of service connection for bladder cancer was denied in an unappealed October 2007 determination by the RO; no new and material evidence was received within one year of that determination. 2. Evidence received since the last final denial of service connection includes medical records pertaining to the Veteran's bladder cancer but such records do not relate to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The October 2007 RO denial of service connection for bladder cancer became final, and new and material evidence has not been received sufficient to reopen the previously denied claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With regard to an application to reopen a previously denied claim, the notice must include the general elements of a service connection claim, the standard for new and material evidence to reopen a claim, and the reason for the previous denial on the merits, including the types of evidence that are necessary to substantiate the claim. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In September 2010, the RO sent a letter to the Veteran giving him notice, which satisfied the requirements of the VCAA. See 38 C.F.R. §3.159(b); see also Kent, 20 Vet. App. at 9-10. In addition to the general elements of service connection, the Veteran was informed of the reasons for the prior denial of service connection, the types of evidence necessary to substantiate the claim, and the requirements for new and material evidence. Accordingly, no further development is required with respect to the duty to notify. Additionally, VA should assist the Veteran in the procurement of pertinent treatment records and provide an examination when necessary. 38 C.F.R. § 3.159. Here, the Veteran's service records and private treatment records were associated with the claims file. In his claim to reopen, the Veteran identified additional private treatment. Records from that treatment were also obtained and associated with the claims file. The Board notes that no VA examination or medical opinion has been provided in connection with the service connection claim. However, as new and material evidence has not been received sufficient to reopen the previously denied claim, such assistance is not required. Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). Further, the new evidence received since the last final adjudication does not trigger VA's duty to provide a VA examination or opinion because it does not indicate that the Veteran's bladder cancer may be associated with his service. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade, 24 Vet. App. at 117. The RO issued a rating decision denying the Veteran's claim for entitlement to service connection for bladder cancer in October 2007. The RO found no evidence of in-service complaints or treatment referable to bladder cancer and no evidence relating the currently diagnosed bladder cancer to his service. Additionally, the presumption based on herbicide exposure was inapplicable because bladder cancer was not a listed disease under the regulation. The Veteran was notified of his appellate rights and no new and material evidence was received within one year of the decision or contact VA about this claim until August 2010. Therefore, the October 2007 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104. The evidence of record at the time of the October 2007 decision included service personnel and treatment records, the Veteran's claim, and treatment records from several private physicians. The personnel records indicated that the Veteran served in Vietnam during the presumptive period and could have been exposed to herbicides. See 38 C.F.R. § 3.307(a)(6). The private medical records documented the diagnosis, treatment, and post-surgery monitoring of the Veteran's bladder cancer, which had an onset in 1996. See Treatment records from Drs. EMK and RSS 8/96-1/07 and treatment records from Dr. JK 9/05-8/06. Since the last final adjudication of his claim, the Veteran has submitted statements requesting a VA examination and provided information about additional medical records. VA obtained additional medical records from a private doctor received in December 2010, January 2012, and March 2012. Specifically, these records consisted of treatment notes and letters from Dr. WMW concerning test findings and the remission status of the Veteran's cancer. See Treatment and letters dated 5/10 and 11/10. The November 2010 letter also mentions that the Veteran reported being exposed to Agent Orange. An additional letter from Dr. WMW dated in May 2011 discusses the Veteran's diagnosis of papillary transitional cell carcinoma. A final letter and treatment record from November 2011 notes that cystoscope surveillance found no recurrent tumors. Although the above-noted documents were not previously submitted to agency decision makers and tare deemed credible for reopening purposes, the information that they contain does not relate to an unestablished fact that is necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Again, evidence of record prior to the October 2007 denial established that the Veteran had bladder cancer in 1996. However, the claim was then denied because there was no evidence to establish a causal relationship between the Veteran's current bladder cancer and his service, including as due to herbicide exposure. The letters and records submitted since the October 2007 decision became final only provide evidence of the Veteran's bladder cancer, they do not relate to the nexus or any possible relationship to his service. In light of the foregoing, the evidence received since the last final October 2007 decision is not new and material, and the Veteran's claim for service connection can not be reopened. See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a). In so finding, the Board has considered this evidence in light of the low threshold for finding new and material evidence. See Shade, 24 Vet. App. at 117. ORDER New and material evidence having not been received, the petition to reopen a claim of service connection for bladder cancer is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs